RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 July 2004
DOCKET NUMBER: AR20040002010
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. Samuel A. Crumpler | |Chairperson |
| |Mr. Stanley Kelley | |Member |
| |Mr. Mark D. Manning | |Member |
The applicant and counsel if any, did not appear before the Board.
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. 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 Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states that she was married to the FSM for 24 years.
3. The applicant provides the FSM's death certificate; their marriage
certificate; the FSM's last will and testament dated 10 November 1983;
email correspondence with the Defense Finance and Accounting Service
(DFAS); and the divorce decree.
CONSIDERATION OF EVIDENCE:
1. The FSM was inducted into the Army on 14 August 1961. He and the
applicant married on 20 August 1975. He retired on 1 November 1989. At
that time, he enrolled in the SBP for spouse only coverage, reduced base
amount.
2. On 8 November 1995, the FSM filed for divorce in the Civil District
Court for the Parish of Orleans, State of Louisiana. The available divorce
decree awarded the applicant alimony and the FSM was ordered to keep her as
the beneficiary of two life insurance policies. The SBP was not mentioned.
The available divorce decree is not signed by a judge.
3. The FSM died on 8 January 2002. His death certificate shows he was
divorced.
4. Records at DFAS show that the FSM continued to pay SBP premiums until
his death but no one is currently receiving the SBP annuity.
5. 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.
6. 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.
7. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
8. 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.
DISCUSSION AND CONCLUSIONS:
It appears the FSM and the applicant divorced in 1995. Although the
available divorce decree does not mention the SBP, records at DFAS show
that the FSM continued to pay SBP premiums until he died, indicating that
it may have been his intent to continue to provide the SBP for the
applicant. His death certificate shows his marital status as divorced and
the SBP annuity is not currently being paid to anyone. As a matter of
equity, the applicant should be granted the SBP annuity.
BOARD VOTE:
__sac___ __sk____ __mdm___ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief. 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 requested after his divorce, in a timely
manner as required by law, to change his SBP coverage from spouse to former
spouse coverage; and
b. that the applicant be paid the SBP annuity as the former spouse
retroactive to the date of the FSM's death.
__Sameul A. Crumpler__
CHAIRPERSON
INDEX
|CASE ID |AR20040002010 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20040713 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |137.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
ARMY | BCMR | CY2006 | 20060003265C070205
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...
ARMY | DRB | CY2005 | 20050008741
David K. Haasenritter | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel) is not available; however, records at the Defense Finance and Accounting Service (DFAS) show he enrolled in the SBP for spouse and children coverage. DISCUSSION AND CONCLUSIONS: Although the SBP is not mentioned in the divorce decree (a German court could not have awarded it to the...
ARMY | BCMR | CY2008 | 20080009597
The applicant, the former spouse of a deceased former service member (FSM), requests, in effect, that the records of the FSM be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse and children coverage. Records at DFAS show no one is currently receiving the SBP annuity. The available evidence of record indicates that the FSM did not remarry and as previously stated, the applicant continued to pay SBP spouse premiums until he died.
ARMY | BCMR | CY2007 | 20070000113C071029
The FSM's Retiree Account Statement, with an effective date 2 December 2003 and with a new pay due date of 2 January 2004 shows he elected full SBP coverage (to provide a 55% annuity amount), for spouse only. 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 election. As a result, the Board recommends that...
ARMY | BCMR | CY2011 | 20110009158
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....
ARMY | BCMR | CY2004 | 20040009530C070208
The applicant requests, in effect, that the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be changed to show former spouse coverage. The FSM and the applicant were divorced on 21 September 2000. 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.
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 | CY2005 | 20050014710C070206
DFAS records also show the applicant identified herself as an "ex- spouse" on her SBP annuity application packet. Since a preponderance of the evidence indicates it was the FSM's intent to provide the SBP to the applicant, it would be equitable to correct the FSM's records to show he changed his SBP coverage to 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 he made a written...
ARMY | BCMR | CY2006 | 20060015805
Counsel requests that the records of the FSM be corrected to show the applicant made a timely request for a deemed election of his SBP. Counsel states, in effect, that the applicant and the FSM agreed to a Stipulated Military Qualifying Court Order, dated 23 August 2005, ordering the FSM to make the applicant the irrevocable beneficiary of the survivor benefit portion of the FSM's pension. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an...
ARMY | BCMR | CY2009 | 20090013477
The FSM and the applicant were divorced on 12 August 2004. After their divorce in August 2004, the FSM continued to pay SBP spouse coverage premiums until his death even though he was not required to do so. Considering there is evidence to show it was the FSM's 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 within a timely manner and that she be paid the...