| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Mr. John P. Infante | Member | ||
| Ms. Paula Mokulis | Member |
2. The applicant requests that the records of her deceased former spouse, a former service member, be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse coverage.
3. The applicant states that the divorce decree specified that the SBP annuity should be paid to her. The FSM’s last will and testament designates her as the sole heir of his estate. He paid the SBP premiums unfailingly until his death. Supporting evidence is as listed on the DD Form 149.
4. The FSM’s military records show that he initially entered active duty in an enlisted status on 28 March 1941. He and the applicant married on 24 April 1943. After having had a short break in service, he re-entered active duty as a commissioned officer on 15 September 1948. He retired on 1 December 1962.
5. On 1 March 1973, the FSM enrolled in the SBP for spouse coverage.
6. On 5 November 1975, the FSM and the applicant divorced. The Property Settlement Agreement stated in pertinent part, “…Husband elected to purchase, …the Survivor’s Protection Plan benefit for Wife…Husband specifically covenants and agrees that so long as he and Wife are both living, that he will continue his payment of Survivor’s Benefit Protection Plan…and that Wife shall be the irrevocable beneficiary thereof; and that Husband’s obligation so to do is an integral part of the within Property Settlement Agreement…”
7. The FSM died on 8 April 2001. The death certificate shows his marital status as divorced. The Defense Finance and Accounting Service verified that he paid SBP spouse premiums until his death, that the SBP annuity is not now being paid, and that the applicant has submitted a claim for the annuity.
8. Public Law 92-425, 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law. Elections are made by category, not by name.
9. Public Law 94-496, dated 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.
10. 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.
11. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
12. 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.
13. 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 or was still on active duty and had not yet made an SBP election.
CONCLUSIONS:
1. From the available evidence it appears that the FSM intended to abide by the provisions of the divorce decree to maintain the SBP for the applicant. It appears he never remarried and he paid SBP premiums from the date of divorce in November 1975 until he died in April 2001. However, although the FSM may have intended to provide the SBP for the applicant, there were no provisions for former spouse coverage until 24 September 1983.
2. There is no evidence of Government error in this case. Since the SBP is a Federal program governed by Federal statute, state courts and state law governing last wills and testaments have little direct authority over the program.
3. Had the FSM informed Army officials of his divorce, spouse premiums would have been suspended effective 1 October 1976.
4. It would be equitable to show that, effective 24 September 1983, the FSM requested his SBP be reinstated for former spouse coverage. Up until 8 November 1985, however, the costs for former spouse coverage were made under the insurable interest provisions (more expensive than spouse coverage). It would further be equitable to show that, on 8 November 1985, when the law changed to allow former spouse costs to be made under spouse provisions, the FSM requested that his SBP costs be changed to spouse provisions.
5. In view of the foregoing, the FSM’s records should be corrected as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by:
a. showing that the FSM informed the Army on 1 December 1975 that he was divorced;
b. showing that the FSM again informed the Army on 1 October 1976 that he was divorced and that spouse premiums were suspended at that time;
c. showing that the FSM requested former spouse SBP coverage on 24 September 1983 and that his premiums, at the insurable interest rate, were re-instated; and
d. showing that the FSM requested former spouse SBP coverage under spouse provisions on 8 November 1985 and that his premiums were deducted at the spouse rate at that time.
2. That the applicant be paid the SBP annuity retroactive to 8 April 2001, the date of the FSM’s death.
3. That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due. If the amount due the Government from the increased premiums from 24 September 1983 to on or about 8 November 1985 is less than the amount overpaid by the FSM from 1 October 1976 to on or about 24 September 1983, the applicant will be refunded the difference.
BOARD VOTE:
_RVO___ ___JPI__ __PM____ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Raymond V. O’Connor, Jr._
CHAIRPERSON
| CASE ID | AR2002068748 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/05/30 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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Former spouse coverage for retired members was not established until September 1983. The FSM overpaid SBP premiums from the date of divorce, when his costs should have been suspended, until 24 September 1983, when former spouse coverage for retired members was established. That all of the Department of the Army records related to this case be corrected by showing that the FSM’s SBP coverage was suspended on 27 June 1980, the date of his divorce; that he requested, in writing, that his SBP...
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The applicants request to correct the record of the FSM to show he changed his SBP election from spouse to former spouse and that she be provided the SBP annuity has been carefully considered. The evidence of record confirms the FSM elected SBP coverage for his spouse, the applicant, upon his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the FSM elected former spouse SBP coverage for the...
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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. There is no evidence the FSM attempted to change his elected SBP from spouse to former spouse prior to his death. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a....
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Donald L. Lewy | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. He and the applicant divorced in December 1978, prior to the establishment of former spouse coverage. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the FSM made a written request to change his SBP coverage to former spouse and children coverage on 24 September 1983...
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She states that they were legally separated on 7 November 1977 and the decision to conclude with a divorce was made in March 1980 prior to the FSM’s retirement. He should not have been paying SBP premiums from on or about 10 June 1980, when they divorced, until 24 September 1983, when former spouse coverage for retired members was established. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM had...
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The FSM retired on 1 September 1962. The evidence of record shows the FSM retired on 1 September 1962, prior to the establishment of the SBP. Considering there is evidence to show it was the FSMs intent to provide SBP coverage for the applicant, his former spouse, it would be equitable to correct his records to show he changed his SBP spouse coverage to former spouse coverage on 24 September 1983.
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Robert W. Soniak | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The FSM continued to pay SBP premiums for almost 24 years after the divorce, and the available evidence shows he never remarried. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a written request on 1 October 1983 to change his SBP coverage to former spouse...
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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. It is reasonable to presume his continuing to pay [spouse] SBP premiums for almost 20 years after the divorce indicated his intention to provide the SBP for the applicant. As a result, the Board recommends that all Department of the Army...
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The applicant was appointed the executor-administrator of his estate. Records at DFAS-CL indicate the FSM continued to pay SBP premiums until his death. 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 or was still on active duty and had not yet made an SBP election.
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On 15 July 1977, the applicant and FSM completed a settlement agreement in the Superior Court for the County of Whitfield and State of Georgia which stipulated, in pertinent part, that the FSM currently made payments on an annuity contract (SBP) whereby a percentage of his monthly retirement pay from the United States Government would continue at his death unto the applicant and the minor children of the marriage. In view of the foregoing and given there is no current spouse beneficiary, it...