| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Fred N. Eichorn | Chairperson | ||
| Mr. Roger W. Able | Member | ||
| Mr. Harry B. Oberg | Member |
APPLICANT REQUESTS: That the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
APPLICANT STATES: That neither she nor the FSM remarried. The FSM suffered from schizophrenia, which prevented him from thinking clearly.
EVIDENCE OF RECORD: The FSM's military records show:
He enlisted in the Regular Army on 10 November 1976.
On 12 December 1978, a medical evaluation board (MEB) found the FSM to be medically unfit with a diagnosis of schizophrenia, paranoid, type, acute, moderate, treated, and improved and referred him to a physical evaluation board (PEB). The MEB considered him to be mentally competent for pay purposes and to have to capacity to understand the nature of and cooperate in board proceedings.
On 9 January 1979, a PEB found the FSM to be physically unfit with a diagnosis of paranoid schizophrenia, acute. He was released from active duty on 12 February 1979 and placed on the Temporary Disability Retired List (TDRL). At that time, he elected to participate in the SBP for spouse and children coverage, reduced base amount ($6.56). At that time, he had two dependent children, born in 1973 and 1976.
On 28 July 1982, the FSM received a TDRL re-examination. At that time he was deemed to be competent to handle his own funds and affairs. A concurrent diagnosis of chronic paranoid schizophrenia, well controlled on minimal drug and counseling therapy, was considered appropriate. On 30 April 1983, the FSM was removed from the TDRL and permanently retired with a 30 percent disability rating.
The applicant provides a 3-page divorce decree indicating she and the FSM divorced on 15 April 1998. The decree indicates there was one
minor child, born on 18 September 1985. The decree does not mention the SBP.
The FSM died on 28 October 2001.
Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The term “dependent child” means a person
who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship. The base amount is the amount of retired pay (in dollars) on which participation is based. By law, the minimum base amount is $300.00.
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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
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.
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. The evidence of record shows that the FSM elected spouse and children coverage for a reduced base amount (although he designated an improper reduced amount). Both at the time of his SBP election and when he received his TDRL re-examination in 1982, he was found by military medical personnel to be mentally competent for pay purposes and to handle his own affairs.
2. There is no evidence to show the FSM was not mentally competent when he and the applicant divorced in 1998. The divorce decree did not award the SBP to the applicant. In any case, the decree indicates that the FSM had a dependent child, born in 1985, who was still an eligible SBP beneficiary at the time of his death. Granting the applicant the relief requested would deny the lawful beneficiary’s right to the SBP.
3. 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
__FNE__ __RWA__ __HBO___ DENY APPLICATION
| CASE ID | AR2002068815 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/06/11 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | DRB | CY2005 | 20050011151
The applicant requests, in effect, that the records of her former spouse, a former service member (FSM), be corrected to show she made a request for a deemed election of the Survivor Benefit Plan (SBP). It was brought to her attention in March 2005 that the FSM's Guardian ad Litem (the FSM's sister) changed the SBP entitlement to child only coverage. The FSM and the applicant divorced on 25 September 2001.
ARMY | BCMR | CY2014 | 20140019123
The applicant requests, in effect, correction of the records of her deceased former husband, a former service member (FSM), to show he changed his SBP coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death. The applicant provides: * Report and Certificate of Marriage * Divorce decree * FSM's Certificate of Death * Applicant's name change * Child's name change * Letter of Guardianship * Physician Certificate for Child...
ARMY | BCMR | CY2004 | 20040004501C070208
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse and children coverage. 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...
ARMY | BCMR | CY2002 | 2002076503C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that 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 member was...
ARMY | BCMR | CY2013 | 20130003177
The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel) * Decree of Divorce * Last Will and Testament * Family Trust * Certificate of Death CONSIDERATION OF EVIDENCE: 1. On 23 May 2011, the FSM and applicant divorced. The FSM and applicant were divorced in May 2011.
ARMY | BCMR | CY2009 | 20090004478
The applicant, the former spouse of a former service member (FSM), requests, in effect, that the FSM's records be corrected to show she submitted a "deemed election" in a timely manner establishing herself as the beneficiary for benefits under the Survivor Benefit Plan (SBP) as a former spouse. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. The law also permits the...
ARMY | BCMR | CY2012 | 20120019507
There is no evidence the applicant made a request for a deemed former spouse election within 1 year of their divorce. 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...
ARMY | BCMR | CY2012 | 20120010030
The applicant requests the record 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 one year of their divorce and payment of the 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...
ARMY | BCMR | CY2014 | 20140007441
The applicant requests, in effect, that the record of her former husband, a former service member (FSM), be corrected to show her as the former spouse beneficiary for the FSM's Survivor Benefit Plan (SBP) benefits. The available records do not show the FSM made a voluntary election to change his SBP election from spouse and child to former spouse coverage within 1 year after their divorce or that the applicant requested a deemed election of former spouse coverage within that same period of...
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...