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ARMY | BCMR | CY1997 | 9711293
Original file (9711293.rtf) Auto-classification: Approved
2. The applicant requests that she be granted a Survivor Benefit Plan (SBP) annuity. Her deceased husband, a former service member (FSM), had elected “spouse only” coverage upon his eligibility for retirement. He continued to pay premiums, even after their divorce, until his death.
3. The FSM’s military records show he was born on 18 January 1927. He and the applicant married on 25 September 1945. He was initially inducted into the Army on 8 October 1945, also served in the Air Force Reserve, and reentered the U.S. Army Reserve as a warrant officer on 17 November 1964. On 8 August 1979, the FSM elected “spouse, immediate option” coverage under the Reserve Component SBP (RCSBP). The FSM was retired on 18 January 1987, upon reaching age 60.

4. On 26 April 1990, the FSM and the applicant divorced.

5. On 24 February 1991, the FSM died.

6. 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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