RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 31 May 2007
DOCKET NUMBER: AR20060014743
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.
x
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 she be determined to be entitled to an annuity based upon the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM).
2. The applicant states that she and the FSM continued to live together for 19 years as man and wife and payments for survivor benefits were deducted from his retirement pay until the time of his death on 29 November 2005.
3. The applicant provides a copy of her letter to the Army Review Boards Agency, Support Division, St. Louis, Missouri, dated 12 October 2006; a letter from the Army Review Boards Agency, Support Division, St. Louis, Missouri, dated 21 September 2006; the FSMs death certificate; her and the FSMs marriage certificate; a copy of her passport; and five letters of support.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 18 September 1920. After having had prior enlisted service in the U.S. Army Air Force and commissioned service in the Air Force, the FSM was appointed as a Reserve warrant officer on 1 April 1955 with a concurrent call to active duty.
2. He was promoted as a Chief Warrant Officer Three (CW3), W-3 on 1 July 1959.
3. The FSM retired on 1 September 1962.
4. The FSM was advanced on the retired list from CW3, W-3 to captain, O-3 effective 13 January 1972.
5. The FSM and the applicant were married on 12 April 1976 and were divorced on 30 October 1979.
6. The FSM died on 29 November 2005. The death certificate shows he was divorced at the time of his death.
7. On 2 May 2007, the Defense Finance and Accounting Service (DFAS) informed the Board analyst that the FSM had enrolled in the SBP during an Open Season for spouse only coverage, reduced base amount. DFAS indicated the FSM had continued to pay SBP premiums until the time of his death. Records at DFAS do not show that anyone is currently receiving the annuity.
8. The applicant provided letters in support of her claim. The individuals stated, in effect, that the FSM and the applicant had continued to live together for another 19 years after their divorce.
9. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. It declared a 12-month Open Season for those members who retired prior to enactment of the law. Elections are made by category, not by name.
10. Public Law 94-496, dated 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.
11. 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.
12. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
13. Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM retired on 1 September 1962, prior to the establishment of the SBP.
2. The FSM married the applicant in April 1976. Records at DFAS show the FSM subsequently elected to participate in the SBP for spouse coverage, reduced base amount.
3. The FSM and the applicant divorced before former spouse coverage was established. After their divorce in October 1979, the FSM continued to pay SBP spouse coverage premiums until his death. His death certificate showed his marital status as divorced. DFAS verified there is no SBP annuitant.
4. Considering there is evidence to show it was the FSMs intent to provide SBP coverage for the applicant, his former spouse, it would be equitable to correct his records to show he changed his SBP spouse coverage to former spouse coverage on 24 September 1983.
5. DFAS will have to audit the FSMs records. He should have not been paying SBP premiums from 30 October 1979, when they divorced, until 24 September 1983, when former spouse coverage for retired members was established. However, from 24 September 1983 until 1 March 1986, he should have been paying SBP costs at the higher insurable interest provisions rate.
BOARD VOTE:
x______ x______ x______ 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:
a. showing the FSM had requested that his SBP coverage be changed from spouse coverage to former spouse coverage on 24 September 1983 and that it was received and processed in a timely manner by the appropriate office;
b. showing he made a written request to change his SBP coverage from former spouse coverage under insurable interest provisions to former spouse coverage under spouse provisions on 1 March 1986 and that it was received and processed in a timely manner by the appropriate office; and
c. after first auditing the FSMs record to determine if additional SBP premiums are due, paying the applicant the SBP annuity retroactive to the date of the FSM death. Additional SBP premium costs, if any, will be deducted from the annuity. Alternatively, overpayment of such costs, if any, will be refunded to the applicant.
x________
CHAIRPERSON
INDEX
CASE ID
AR20060014743
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES 1.
137.0000
2.
3.
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5.
6.
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