RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 January 2008
DOCKET NUMBER: AR20070009398
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 L. Engle
Analyst
The following members, a quorum, were present:
Mr. Hubert O. Fry, Jr.
Chairperson
Mr. John T. Meixell
Member
Mr. Rowland C. Heflin
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, the daughter of the former service member (FSM), requests that the FSMs records be corrected to show that he changed his election in the Survivor Benefit Plan (SBP) from spouse and dependent children coverage to former spouse coverage.
2. The applicant states, in effect, that the FSM was married to his former spouse for 33 years throughout his military career. They divorced in 2004 in the midst of his battle with cancer. The divorce decree states that the former spouse is to retain SBP benefits.
3. The applicant provides copies of the court order declaring the former spouse incapacitated, letter of guardianship, divorce decree, and the FSMs last will and testament.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the United States Army National Guard and the United States Army Reserve, serving from 24 March 1960 to 15 December 1963. On
16 December 1963, the FSM enlisted in the Regular Army and served on active duty until his retirement for length of service on 31 August 1993. He had attained the rank of sergeant major, pay grade E9, and had completed 30 years and
29 days of creditable active service.
2. On 27 April 1993, the FSM submitted DA Form 4240 (Data for Payment of Retired Army Personnel) showing that he elected full SBP coverage for his spouse and dependent children.
3. On 22 June 2004, the FSM was divorced. The divorce decree, in effect, states in pertinent part that the FSM would assign to the former spouse a portion of the FSMs military retirement benefits including retired pay and SBP coverage.
4. The FSM died on 24 May 2007. His death certificate showed that he was divorced at the time.
5. 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.
6. 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.
7. Public Law 99-661, enacted 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.
8. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. 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 of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The FSM retired on 1 September 1993 and prior to retirement he completed his DA Form 4240 on 27 April 1993. It indicates that he was married and that he elected spouse and dependent children coverage.
2. The FSM was divorced on 22 June 2004 and was still divorced at the time of his death. The divorce decree stated in pertinent part that the FSM was required to provide SBP coverage for his former spouse. However, there is no evidence showing that either the FSM or the former spouse took any action to effect a change of SBP election.
3. In view of the above, the FSMs records should be corrected to show that, within 1-year of the divorce, he had changed his SBP election to former spouse.
BOARD VOTE:
__JTM___ __RCH__ __HOF__ 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 showing that the FSM changed his SBP election, within a year of his divorce, from spouse and dependent children to former spouse. In view of this correction, DFAS is to pay SBP former spouse benefits retroactive to 24 May 2007.
__ Hubert O. Fry, Jr._________
CHAIRPERSON
INDEX
CASE ID
AR20070009398
SUFFIX
RECON
DATE BOARDED
20080117
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137.0400
2.
3.
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5.
6.
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