RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 November 2005
DOCKET NUMBER: AR20050006069
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. Lester Echols | |Chairperson |
| |Mr. John E. Denning | |Member |
| |Ms. Jeannette R. McCants | |Member |
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 she and the FSM were married for 30 years.
Although they divorced in December 2002, he continued to pay for the SBP.
An attorney at Fort Polk, LA advised them nothing needed to be done in
respect to the SBP as the applicant would remain the beneficiary after the
divorce. In addition, the FSM specifically told their daughter the
applicant was to receive payments under the SBP. The applicant and the FSM
remained amicable after their divorce, and she became his caregiver after
his cancer spread.
3. The applicant provides the FSM's death certificate; an affidavit from
their daughter; their daughter's power of attorney; the judgment of
divorce; and the FSM's DD Form 214 (Certificate of Release or Discharge
from Active Duty) for the period ending 30 November 1995.
CONSIDERATION OF EVIDENCE:
1. The FSM and the applicant married on 29 April 1972. After having had
prior service, the FSM was appointed a warrant officer and entered active
duty on 17 November 1989.
2. On 14 November 1995, the FSM completed a DD Form 2656 (Data for Payment
of Retired Personnel) and indicated he elected to participate in the SBP
for spouse only coverage, reduced base amount. He retired on 1 December
1995.
3. On 18 December 2002, the FSM and the applicant divorced. The judgment
of divorce does not mention the SBP.
4. The FSM died on 26 January 2005. The death certificate indicates the
FSM's marital status as divorced.
5. Records at the Defense Finance and Accounting Service (DFAS) show the
FSM continued to pay SBP premiums until his death and that no one is
currently receiving the annuity.
6. 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. Elections are made by
category, not by name.
7. 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.
8. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
9. 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:
1. The FSM had elected SBP spouse coverage at the time he retired. SBP
elections are made by category, not by name. Once the FSM and the
applicant divorced, the applicant was no longer an eligible spouse
beneficiary, and the judgment of divorce did not award her the SBP as the
former spouse.
2. Nevertheless, the FSM continued to pay SBP premiums until he died. His
death certificate indicates he was not married at the time of his death and
records at DFAS indicate no one is currently receiving the SBP annuity.
The applicant was married to the FSM for the majority of his military
career and it was Congress’s intent in establishing the SBP to provide for
those spouses who supported the military member for the majority of his or
her military career.
3. Therefore, it would be equitable to correct the FSM's records to show
he changed his SBP coverage to former spouse coverage.
BOARD VOTE:
__le____ __jed___ __jrm___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL 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
showing he made a written request to change his SBP coverage to former
spouse coverage on 1 January 2003 and that the applicant be paid the SBP
annuity retroactive to the date of his death.
__Lester Echols_______
CHAIRPERSON
INDEX
|CASE ID |AR20050006069 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051117 |
|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. | |
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