RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 2 August 2007
DOCKET NUMBER: AR20070001010
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Mr. Curtis Greenway
Chairperson
Mr. Robert Soniak
Member
Ms. Karmin S. Jenkins
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) election from spouse to former spouse coverage.
2. The applicant states, in effect, that she was awarded the SBP in her divorce decree and has not received any payments since the death of the FSM. She was unaware of the error because of medical and hospitalization problems.
3. The applicant provides an undated 2-page Circuit Court of Dale County, Alabama Divorce Judgment; an Alabama Certificate of Death, dated
24 November 1999; three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); a DD Form 214 (Report of Separation from Active Duty); and a DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 19 September 1961. He and the applicant married on 5 March 1979.
2. On 25 July 1988, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form, he indicated that he elected spouse coverage SBP, reduced base amount.
3. The FSM retired on 1 August 1988.
4. On 31 August 1992, the FSM divorced. The divorce judgment stated in pertinent part that the FSM and the applicant would maintain SBP coverage on the applicant, "which shall be in full force and effect until the Defendant dies or reaches the age of 65, whichever shall occur first."
5. There is no evidence that shows the FSM submitted a written request, or that the applicant submitted a written request for a deemed election, to the Defense Finance and Accounting Service (DFAS) to change the SBP coverage from spouse to former spouse coverage within one year of the divorce.
6. On 16 November 1999, the FSM died. His death certificate shows his marital status as divorced.
7. On 26 July 2007, DFAS confirmed that the FSM had paid for SBP spouse reduced coverage until his death and no one is receiving the annuity.
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 98-94, dated 24 September 1983, established former spouse coverage for retired members.
10. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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 to elect to provide an annuity to a former spouse. 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. The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.
12. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. 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:
It appears neither the FSM nor the applicant requested that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one year time limit from the day of their divorce. However, the FSM continued to pay premiums after his divorce until his death and no one is currently receiving the annuity. It appears that it was always his intention to comply with the courts order. It would be equitable to correct the FSM's records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.
BOARD VOTE:
__CG ___ __RS ___ ___KSJ _ 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 made a written request to change his SBP coverage to former spouse coverage on 15 September 1992;
b. showing the FSM's request was received and processed by the appropriate officials in a timely manner; and
c. that the applicant be paid the SBP annuity based on the above correction, effective 16 November 1999, the date of the FSMs death.
___ Curtis Greenway _
CHAIRPERSON
INDEX
CASE ID
AR20070001010
SUFFIX
RECON
DATE BOARDED
2 AUGUST 2007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
MR. SHATZER
ISSUES 1.
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