RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060010960
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. Gerard W. Schwartz
Acting Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. Kenneth Wright
Chairperson
Mr. Chester Damian
Member
Ms. Ernestine Fields
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, in effect, that in accordance with her divorce decree she is the beneficiary of the SBP and that her former husband continued to pay for the SBP, so he intended her to have it. She contends that she was unaware that she needed to do anything as her lawyer insisted that he would handle it.
3. The applicant provides a marriage certificate; a divorce decree and settlement; a copy of the FSMs DD Form 214; and the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was inducted on 23 February 1951. He and the applicant married on 24 March 1956.
2. On 10 November 1971, the FSM retired in the rank of staff sergeant after completing over 20 years of active service.
3. The applicants Survivor Benefit Plan Election Certificate, dated 31 August 1973, shows he enrolled in the SBP for spouse and children coverage.
4. The FSM and the applicant divorced on 11 November 1994.
5. The FSM died on 2 July 2006. The death certificate shows his marital status as divorced.
6. Records at the Defense Finance and Accounting Service (DFAS) show that the FSM continued to pay SBP premiums until his death and that no one is currently receiving the annuity.
7. The applicant provides a copy of the divorce decree, which states, in pertinent part, that Wife shall be entitled to survivor benefits from Husbands pension/annuity based on his former service in the United States Army, and Husbands existing designation for that purpose may not be altered hereafter. Wife, through her counsel, is authorized to send a copy of this decree to the Defense Finance and Accounting Service for purposes of notifying the Department of Defense of the irrevocable nature of Husbands survivor benefits election.
8. 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.
9. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
10. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
11. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. 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 after the date of the decree of divorce, dissolution, or annulment.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that she was unaware that she needed to do anything as her lawyer insisted that he would handle it was noted. Since the divorce decree states that the applicant, through her counsel, was authorized to send a copy of this decree to DFAS for purposes of notifying the Department of Defense of the irrevocable nature of the FSMs survivor benefits election, it is reasonable to presume that the applicant thought her lawyer did so in a timely manner.
2. Although there is no evidence to show that either the FSM or the applicant requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears that it was the FSM's intention to provide the SBP annuity to the applicant.
3. The FSM continued to pay SBP premiums after their divorce, it appears he never remarried, and no one is currently receiving the annuity. It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.
BOARD VOTE:
KW____ ___CD___ __EF____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 that the FSM made a written request to change his SBP coverage to former spouse on 1 January 1995, and the request was accepted and processed by the appropriate office in a timely manner.
2. That the applicant be paid the SBP annuity effective 2 July 2006, the date of the FSM's death.
___Kenneth Wright_____
CHAIRPERSON
INDEX
CASE ID
AR20060010960
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137.0000
2.
3.
4.
5.
6.
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