| Mr. Carl W. S. Chun | Director | |
| Mrs. Joyce A. Hall | Analyst |
| Ms. Shirley L. Powell | Chairperson | |
| Mr. Allen L. Raub | Member | |
| Mr. Thomas E. O’Shaughnessy, Jr. | Member |
APPLICANT REQUESTS: In effect, that the records of her former spouse, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) former spouse coverage.
APPLICANT STATES: In effect, that the divorce decree ordered the FSM to “name” her as sole beneficiary of SBP and he shall be responsible for paying all premiums for SBP. She was unaware that the FSM terminated the coverage. She was not notified that the SBP coverage was discontinued nor was she aware that she had one year to dispute this. The applicant submits a copy of her divorce decree, a copy of her certificate of marriage and a copy of the FSM’s death certificate in support of her application.
EVIDENCE OF RECORD: The applicant's military records show:
The FSM was born on 31 October 1946. He initially enlisted in the Regular Army on 30 March 1973, his services were continuous through extensions and reenlistments.
The applicant and the FSM married on 16 November 1974. On 1 April 1990 the FSM retired. At the time of his retirement the FSM elected SBP coverage for the applicant.
On 15 March 1993, the applicant and the FSM divorced. The divorce decree awarded the applicant 39.16% of the FSM’s retirement pay and benefits as a former spouse of a retired military service member. It further ordered and decreed that the applicant be named the sole beneficiary on the FSM’s SBP
and that the FSM shall choose the maximum benefit which is to be payable the applicant.
The Defense Finance and Accounting Service – Cleveland has stated that SBP
coverage was terminated upon notification of the divorce (April 1993).
On 29 October 2000, the FSM died.
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.
Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree has elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order
SBP coverage (without the member’s agreement) in those cases where the retiree has elected spouse coverage at retirement. The law stipulated that the retiree had to request the Defense Finance and Accounting Service to change SBP participation from spouse to former spouse. The law also stipulates that the former spouse has 1 year from the date of the divorce decree to make a deemed election as beneficiary under the SBP. The FSM and the former spouse failed to make a written request within 1 year of the date of the divorce.
Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. There is no evidence of Government error in this case. However, attorneys for the applicant and the FSM should have known that federal law clearly required that the FSM make a written application to the Army to have his SBP election changed from “spouse” to “former spouse.” If he failed or refused to do so, federal law clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made. The law also provides, however, that an election may not be deemed to have been made
unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved. In this case the law’s one year time limit to request a deemed election expired on 15 March 1994.
In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__slp___ __alr___ __teo___ DENY APPLICATION
| CASE ID | AR2001052086 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011023 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2010 | 20100019867
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. It would now be appropriate to correct the injustice by showing the applicant requested a deemed election of the SBP under the terms of the divorce decree within 1 year of the divorce in 1994. As a result, the Board recommends...
ARMY | BCMR | CY2010 | 20100026841
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. The law also provides that, within 1 year of the divorce, a former spouse may request that a Former Spouse SBP coverage election be deemed to have been made. Although the divorce decree required the FSM to continue SBP...
ARMY | BCMR | CY2013 | 20130003451
The applicant, the former spouse of a retired and deceased former service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on his death. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. The applicant and the FSM were divorced in 1995.
ARMY | BCMR | CY2014 | 20140019417
The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. On 25 March 1987, the FSM and applicant were divorced. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse...
ARMY | BCMR | CY2014 | 20140021639
The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of the divorce and payment of the SBP annuity based on his death. Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP...
ARMY | BCMR | CY2011 | 20110003140
His service record is void of evidence which indicates the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of the divorce. Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. However, there is no evidence which...
ARMY | BCMR | CY2011 | 20110017562
The applicant states: * she and the FSM gave the best years of their lives to the Army * the only reason she divorced the FSM is because of what Operation Desert Storm did to him; he came back a different man * their divorce decree clearly stipulated that she was to be the beneficiary under the SBP at the FSM's expense * the FSM paid SBP premiums from his retired pay each and every month * in spite of their divorce, she and the FSM spoke at least once a week * when the FSM knew he was dying...
ARMY | BCMR | CY2013 | 20130016844
The applicant, the former spouse of a retired, and now deceased, former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. The applicant states: * her former spouse elected Option C on 15 January 1988 when he received his 20-year letter and on 31 December 1992 when he retired * she and the FSM were divorced after 20 years of marriage...
ARMY | BCMR | CY2014 | 20140011733
The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death. However, the FSM's pay records do not reflect receipt of the former spouse election from the FSM nor did DFAS receive a deemed election request from the applicant within one year of the divorce. When the FSM...
ARMY | BCMR | CY2013 | 20130000664
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved. As a result,...