RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 14 September 2006
DOCKET NUMBER: AR20060000971
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. Eric N. Andersen | |Chairperson |
| |Ms. Rose M. Lys | |Member |
| |Mr. Richard O. Murphy | |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 did not waive her rights to the SBP.
3. The applicant provides a request, dated 2 November 2005, for a deemed
election of the SBP; the FSM’s death certificate; their marriage license
and marriage certificate; a DD Form 1883 (Survivor Benefit Plan – Election
Certificate); and the decree of dissolution of marriage.
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the FSM enlisted in the Regular Army on
10 August 1960. He and the applicant married on 10 March 1969.
2. The FSM retired on 1 July 1973. He had elected to participate in the
SBP for spouse coverage.
3. The FSM and the applicant divorced on 21 August 1978.
4. Records at the Defense Finance and Accounting Service (DFAS) indicate
the FSM remarried on an unknown date and divorced on 1 April 1987. DFAS
records show the FSM did not pay SBP premiums after his April 1987 divorce.
5. The FSM died on 8 November 2004. His death certificate shows his
marital status as widower.
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.
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 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.
10. 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.
11. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions
of the USFSPA relating to the SBP. It permits a person, incident to a
proceeding of divorce, to elect to provide an annuity to a former spouse if
required by court order to do so. Any such election must be written,
signed by the person making the election, and received by the Secretary
concerned within one year after the date of the decree of divorce. 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 AND CONCLUSIONS:
1. The applicant’s contention that she did not waive her rights to the
SBP, and the 2 November 2005 request for a deemed election that she
provided, have been carefully considered.
2. It is true that the FSM elected spouse SBP coverage upon his
retirement. However, once the FSM and the applicant divorced, the
applicant was no longer a spouse beneficiary.
3. Unfortunately, the FSM and the applicant divorced prior to the
establishment of former spouse SBP coverage. In addition, it appears the
FSM remarried and divorced again in 1987. After 1987, he no longer paid
SBP premiums, indicating it was not his intention to provide SBP coverage
to anyone.
4. Regrettably, there is insufficient evidence that would warrant granting
the applicant the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__ena___ __rml___ __rom___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
__Eric N. Andersen____
CHAIRPERSON
INDEX
|CASE ID |AR20060000971 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060914 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |137.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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