RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 April 2007
DOCKET NUMBER: AR20060011391
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. John Infante
Chairperson
Ms. Susan Powers
Member
Mr. Qawiy Sabree
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 it is totally unjust that in the absence of a former spouse SBP election from the FSM or a deemed election from her within one year of their divorce that she has been denied SBP benefits. She states that there are other documents in the FSMs military records which clearly reveal his intent for her to be the beneficiary of his SBP as his former spouse following their divorce.
3. The applicant provides eight enclosures outlined in her continuation sheet.
CONSIDERATION OF EVIDENCE:
1. The FSM and the applicant married on 17 June 1961. He enlisted in the Regular Army in 1962 and was appointed a Warrant Officer on 20 February 1979.
2. Part III (Survivor Benefit Plan Election) on the FSM's DA Form 4240 (Data for Payment of Retired Personnel), dated 24 May 1988, shows he enrolled in the SBP for spouse coverage, full base amount.
3. On 31 July 1988, the FSM retired in the rank of Warrant Officer Three after completing over 26 years of active service.
4. The FSM and the applicant divorced on 21 October 1992.
5. The FSM died on 21 September 2005. 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 and property settlement which state, in pertinent part, that Husband will make continuing contributions to the Survivor Benefit Plan. and HUSBAND agrees to continue to authorize a deduction from his retirement check for the Survivor Benefit Plan for the WIFES benefit in the case of his death. The WIFE is and will remain the named beneficiary.
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:
JI________ __SP__ ___QS___ 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:
a. the FSM made a written request to change his SBP coverage to former spouse on 1 November 1992 and the request was accepted and processed by the appropriate office in a timely manner.
b. the applicant is paid the SBP annuity effective 21 September 2005, the date of the FSM's death.
___John Infante________
CHAIRPERSON
INDEX
CASE ID
AR20060011391
SUFFIX
RECON
DATE BOARDED
20070403
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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