| Mr. Carl W. S. Chun | Director | |
| Mr. Vic Whitney | Analyst |
| Ms. Jennifer L. Prater | Chairperson | |
| Ms. Regan K. Smith | Member | |
| Mr. Arthur A. Omartian | Member |
APPLICANT REQUESTS: That the records of her former husband, a deceased former service member (FSM), be corrected to show that he changed his Survivor Benefit Program (SBP) election to former spouse.
APPLICANT STATES: In effect, that she and the FSM were divorced on 12 January 1998 and the FSM died on 26 May 2001. Since the FSM never remarried the records should be corrected to show her entitlement to his SBP.
COUNSEL CONTENDS: Counsel offers no additional information.
EVIDENCE OF RECORD: The deceased former service member's military records show:
He retired from active duty on 30 September 1977 in the pay grade of E-8 with over 20 years and 8 months active duty. At the time of his retirement he was married and elected SBP coverage for his spouse.
The applicant submits evidence that shows that she and the FSM were married on 9 July 1994. Information provided by the Defense Finance and Accounting Service (DFAS) showed that in July 1995, the FSM elected SBP coverage for the applicant. There is no evidence of record to show when the FSM's marriage to his spouse at the time of his retirement was dissolved or if the FSM was directed by a court to maintain SBP coverage for that former spouse.
The applicant provides a copy of the Decree of Divorce, dated 12 January 1998, and the Agreement, dated 15 May 1997, between herself and the FSM. The Decree of Divorce states that the Property Settlement Agreement of 15 May 1997 was approved and judicially sanctioned by the court was made an order of the court by reference. Neither the Decree of Divorce nor the Agreement makes any mention of the SBP by direct reference or inference.
Information provided by the DFAS showed that effective January 1998 the SBP payments made by the FSM were suspended because there was no legal annuitant. There is no evidence of record that the FSM or the applicant ever requested that SBP coverage be changed to former spouse.
The Certificate of Death provided by the applicant shows that the FSM died on 26 May 2001. The certificate shows that he was divorced at the time of his death.
Public Law 92-245, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. SBP coverage is suspended when there is no eligible beneficiary.
Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.
Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect to resume spouse coverage. Changes must be made prior to the first anniversary of remarriage.
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 coverage at retirement.
Title 10, U. S. Code, section 1448(b)(3) incorporated the provisions of the Uniformed Services Former Spouses Protection Act 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. 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. There is no evidence of record to show that the FSM ever elected to change his SBP coverage from spouse to former spouse.
2. There is no evidence submitted by the applicant to show that SBP coverage for her as a former spouse was directed or addressed in the Decree of Divorce or the 15 May 1997 Agreement that was made an order of that court.
3. 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 this requirement.
4. 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
__jp___ ___rs___ __ao___ DENY APPLICATION
| CASE ID | AR2002066936 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020604 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.01 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2004 | 20040011510C070208
The FSM divorced on 11 May 1995. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election. In accordance with Federal Law, a request to change SBP coverage from spouse to former spouse coverage must have been made within one year of the date of divorce by either the FSM or the applicant.
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 | CY2005 | 20050014731C070206
She included in the divorce decree that she would like the SBP as part of her divorce settlement for herself and her two children. The applicant submitted a written request, dated 25 May 2005, for a deemed election to DFAS to change the SBP coverage from spouse and children to former spouse and children coverage. Considering the applicant submitted a deemed election for former spouse and children coverage in a timely manner and provided documentation as evidence of her timely deemed...
ARMY | BCMR | CY2012 | 20120011598
Counsel requests reconsideration of the applicant's earlier request that 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. 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...
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 | CY2001 | 2001065247C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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 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...
ARMY | BCMR | CY2006 | 20060013553
There is no evidence of record which indicates the applicant submitted a written request for a deemed election for former spouse coverage, although the 1983 divorce decree did not entitle her to make a request for a deemed election. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election. But neither...
ARMY | BCMR | CY2014 | 20140004491
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. The FSM and applicant were divorced on 26 September 2012. Unfortunately, there is no evidence the FSM changed his SBP coverage to "former spouse" coverage or the applicant deemed the election within one year of her divorce.
ARMY | BCMR | CY2011 | 20110010711
The applicant, Mary, a former spouse of a deceased former service member (FSM), requests correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. The applicant states: * she and the FSM were married from January 1950 to June 1995 * when he retired in 1973, the FSM elected spouse only SBP coverage * the divorce decree directed the FSM to change his SBP election to former spouse coverage * neither she nor the FSM made a deemed election...
ARMY | BCMR | CY2007 | 20070010653C080407
The applicant requests, in effect, that the Survivor Benefit Plan (SBP) coverage election made by her deceased former spouse, a former service member (FSM), be changed to "Former Spouse", and that she be provided a SBP annuity based on the death of the FSM. The evidence of record confirms that the applicant and the FSM were divorced on 5 August 1997, and that the FSM submitted a SBP election change to "Former Spouse" in December 1997, within a year of the divorce, as directed in the divorce...