RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 March 2007
DOCKET NUMBER: AR20060011260
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. William Powers
Chairperson
Mr. Paul Smith
Member
Mr. Jerome Pionk
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 that she is eligible for survivor benefits as an ex-spouse. She contends that her divorce papers indicate that she is the annuitant of the SBP.
3. The applicant provides a letter, dated 26 July 2006, from the Defense Finance and Accounting Service (DFAS); a DD Form 2656-7 (Verification for Survivor Annuity); a direct deposit form; a Form W-4P (Withholding Certificate for Pension or Annuity Payments); a blank voided check; the FSMs death certificate; and a divorce decree.
CONSIDERATION OF EVIDENCE:
1. Having prior inactive and active duty, the FSM entered active duty as a commissioned officer on 31 December 1966. He and the applicant married on 23 May 1969.
2. Part III (Survivor Benefit Plan Election) on the FSM's DA Form 4240 (Data for Payment of Retired Personnel), dated 24 February 1987, shows he enrolled in the SBP for spouse and dependent children coverage, full base amount.
3. On 31 March 1987, the FSM retired in the rank of lieutenant colonel after completing over 20 years of active service.
4. The FSM and the applicant divorced on 21 September 1989.
5. The FSM died on 26 April 2006. The death certificate shows his marital status as divorced.
6. Records at 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 separation agreement which states, in pertinent part, that the Husband shall retain the Survivor Benefit Plan presently in existence through the military for the benefit of the Wife, as beneficiary for as long as she is not remarried.
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. 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.
2. 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:
WP____ ___PS__ __JP____ 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 November 1989 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 26 April 2006, the date of the FSM's death.
__William Powers______
CHAIRPERSON
INDEX
CASE ID
AR20060011260
SUFFIX
RECON
DATE BOARDED
20070313
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137.0400
2.
3.
4.
5.
6.
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