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Decision Text

ARMY | BCMR | CY1997 | 9711274
Original file (9711274.rtf) Auto-classification: Approved
2. The applicant requests that she be granted a Survivor Benefit Plan (SBP) annuity. She was still married to her deceased husband, a former service member (FSM), when he passed away. She was the one who was notified by the casualty office the day he passed away. She was never notified that he did not elect SBP coverage for her.
3. The FSM’s military records show he enlisted in the Regular Army on 14 September 1977.

4. The applicant and the FSM were married on 18 November 1985.

5. A divorce decree, in Spanish, from the Dominican Republic, is in the records. An unofficial translation of that document shows that the applicant initiated the divorce proceedings. The divorce was granted on 3 April 1992, the applicant was granted custody of their two children. There is no mention of the typical American monetary issues normally laid out in a divorce decree, i. e., alimony, child support, division of property, etcetera. The closest phrase in this decree is “Full compensation and simply the costs of this procedure among this couple,” with no clear indication as to who or what is meant by this phrase.

6. On 4 September 1992, the applicant had the Long Beach, California Naval Station Legal Assistance Office send a letter to the FSM concerning his failure to render adequate and/or continuous financial support to her and the children. The letter notes “While she does not wish to pursue a divorce, if necessary this office can assist her in filing.”

7. DD Form 41, Record of Emergency Date, dated 7 October 1992, shows the FSM as divorced, the two youngest children as residing with their mother. The beneficiary for his death gratuity and unpaid pay and allowances was his mother. On 2 December 1992, he completed a Serviceman’s Group Life Insurance Election and Certificate form and designated his mother as the principal beneficiary and his sister as the contingent beneficiary.

8. On 31 October 1992, the FSM was drawing basic allowance for quarters (BAQ) at the with dependents rate, with a spouse as a dependent.

8. On 8 February 1993, a Physical Evaluation Board found the FSM to be physically unfit by reason of HIV, Stage 6 (the most advanced stage of immunodeficiency).

9. He completed DA Form 4240, Data for Payment of Retired Pay, on 14 April 1993. He checked that he was single and that he elected SBP for dependent children only. His youngest child was born on 23 September 1988. The form was not witnessed.

10. He was placed on the Temporary Disability Retired List (TDRL) with a 60 percent disability rating on 4 June 1993.

11. On 17 November 1994, the applicant was issued a dependent identification card as the spouse of the FSM.

12. On 18 December 1994, the FSM died. The death certificate, prepared by the State of Maryland/Department of Health and mental Hygiene, lists the FSM as divorced. Fort McNair, Washington, D. C. prepared the casualty report. The applicant is listed as the FSM’s spouse.

13. On 9 May 1995, the VA granted the applicant’s claim for Dependence and Indemnity Compensation at the surviving spouse’s rate with two dependents.

13. On 3 September 1996, the applicant was issued a dependent identification card as the unremarried widow of the FSM.

14. On 20 September 1995, the Defense Finance and Accounting Service - Denver, sent a notice to the applicant that “We have received all the documentation we need to establish your survivor Benefit Plan (SBP) annuity).”



13. Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

7. Public Law 95-397, the RCSBP, dated 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP) to provide an annuity for their survivors should they die before reaching age 60.

8. Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

9. The Headquarters, Army Retirement Services Office recommended that the applicant’s request be approved. That office noted that the applicant continued to pay SBP premiums after his divorce. While they found no evidence that he had ever requested that his SBP coverage be changed to “former spouse,” the fact that he did continue to pay the premiums is offered by the applicant and family members as evidence of his intent that his former spouse be covered in SBP. The opinion noted that, based upon lack of evidence that the FSM intended to deny his former spouse the benefit, and considering the nature of his relationship with his former spouse until his death as attested to by statements from the applicant and the FSM’s children, it is reasonable to change the FSM’s SBP election to “former spouse” and pay the applicant an annuity retroactive to his date of death.
 CONCLUSIONS :

1. The evidence of record shows the FSM elected “spouse only” SBP coverage upon his eligibility for retirement. After his divorce on 26 April 1990, premiums continued to be deducted from his pay for coverage of his then ex-spouse, thus leading him to believe that her coverage continued.

2. Statements from his two children attest to the FSM’s intent to provide an SBP annuity for his former spouse. Their mother divorced their father only to try to force him to stop drinking; she never had any intention of leaving him. After the divorce, she continued to live with the FSM and take care of him. Both before and after the divorce, their father frequently mentioned that he was giving his survivor’s benefits to their mother.

 3. The application is dated 7 March 1996, so the Barring Statute should not be a hindrance to any relief granted.
4. In view of the foregoing, it would be in the interest of justice to correct the records as recommended below.

 RECOMMENDATION

1. That all of the Department of the Army records related to this case be corrected by showing that the FSM applied for “former spouse” coverage on 26 April 1990, the date of the divorce.

2. That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 24 February 1991, the date of his death.

 BOARD VOTE :
GRANT AS STATED IN RECOMMENDATION

 GRANT FORMAL HEARING

 DENY APPLICATION




                         
                          CHAIRPERSON

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