RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 February 2008
DOCKET NUMBER: AR20070011142
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
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 reconsideration of her earlier request that the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be changed to former spouse coverage.
2. The applicant states that she returned to court for an updated decree. She also obtained an affidavit from the FSMs widow.
3. The applicant provides the original Record of Proceedings; their marriage certificate; the FSMs retirement DD Form 214 (Certificate of Release or Discharge from Active Duty); pages 3 and 4 of the FSMs DD Form 2656 (Data for Payment of Retired Personnel); their divorce decree; the FSMs certificate of marriage to his second spouse; the FSMs certification of death, the FSMs Last Will and Testament; and an Application to Probate Will.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050017170 on 17 August 2006.
2. The FSM and the applicant married on 18 January 1985. The FSM retired on 31 October 1996 after completing over 22 years of creditable active service. He had elected to participate in the SBP for spouse coverage, reduced base amount ($421.00). His spouse at the time, the applicant, concurred with the FSMs SBP election.
3. The FSM and the applicant divorced on 26 April 2000. The divorce decree found that the applicant should remain the FSMs SBP beneficiary and also ordered the applicant to reimburse the FSM the cost of the SBP premiums.
4. Apparently neither the FSM nor the applicant nor their attorneys took the proper steps to ensure the FSMs SBP election was changed to former spouse coverage within the one-year time frame provided for by law.
5. The FSM remarried on 3 June 2004. He died on 28 May 2005.
6. The applicant returned to court, and on 3 August 2007 the court ordered that the findings of the original court pertaining to the SBP be executed by the FSMs executrix, his widow.
7. On 2 August 2007, the FSMs widow signed an affidavit noting that she and the FSM had been married for less than one year and had no children and that she consented to the applicants request to change the FSMs SBP election to former spouse coverage.
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), dated 8 September 1982, established SBP coverage for former spouses of retiring members.
10. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
11. 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.
12. 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.
13. 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:
1. When the FSM and the applicant divorced in April 2000, the court ordered that the FSM retain the applicant as his SBP beneficiary and even required that the applicant pay for the SBP. However, it appears that neither the FSM nor the applicant nor their attorneys took the proper steps to ensure the FSMs SBP election was changed to former spouse coverage within the one-year time frame provided for by law.
2. The FSM subsequently remarried. However, he was married to his new spouse for less than one year and they had no children. The FSMs widow has signed an affidavit consenting to the applicants request to change the FSMs SBP election to former spouse coverage.
3. At this time, it would be equitable to correct the FSMs records to show he changed his SBP coverage to former spouse coverage.
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 amendment of the ABCMRs decision in Docket Number AR20050017170 dated 17 August 2006. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing that he requested to change his SBP election to former spouse coverage on 1 May 2000 and that his request was received and processed by the appropriate office in a timely manner; and
b. paying to the applicant the SBP annuity retroactive to the date of the FSMs death.
__x___
CHAIRPERSON
INDEX
CASE ID
AR20070011142
SUFFIX
RECON
DATE BOARDED
20070228
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES 1.
137.04
2.
3.
4.
5.
6.
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