RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 April 2008
DOCKET NUMBER: AR20070015370
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
Member
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 requests that the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be corrected to show he changed his election to former spouse and children coverage.
2. The applicant states that she has now obtained a notarized, sworn affidavit from her daughter renouncing the daughters right to the SBP payments she has already received and acknowledging that the requested correction would result in a debt held by her of all paid SBP annuities.
3. The applicant provides a notarized, sworn affidavit from her daughter.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in two previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050017432 on 17 August 2006 and in Docket Number AR20070004218 on 20 September 2007.
2. The applicant provided new evidence which will be considered by the Board.
3. On 11 February 1981, the FSM elected to participate in the SBP for spouse and children coverage. He retired on 28 February 1981.
4. The FSM and the applicant divorced on 8 May 1987. The divorce decree did not mention the SBP. Some time after the divorce, the FSM relocated to Brazil, where he resided until his death.
5. The FSM died on 23 October 2002, and his eligible minor daughter was paid the SBP annuity. On 20 July 2007, the Defense Finance and Accounting Service (DFAS) informed the Board analyst that the FSM had continued to pay spouse and child premiums until he died.
6. The applicant provided a sworn, notarized statement from her daughter. In the statement, the daughter renounced her rights to the SBP payments she had already received. She acknowledged that a records correction to show that the FSM elected former spouse coverage would result in a debt held by her and would require her to repay all SBP annuities that she has received.
7. 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. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.
8. 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.
9. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
10. 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.
DISCUSSION AND CONCLUSIONS:
1. The FSM had elected to participate in the SBP for spouse and children coverage.
2. When the FSM and the applicant divorced in 1987, the divorce decree did not mention the SBP. However, DFAS confirmed that the FSM continued to pay spouse and child SBP premiums until his death 15 years later, indicating intent on his part to continue to provide SBP coverage for the applicant. But, he failed to make a written request to change his spouse and children coverage to former spouse and children coverage within one year of the divorce. That failure meant that his dependent daughter became the sole legal beneficiary of the SBP annuity when he died.
3. However, since there is clear indication that it was the FSMs intent to continue to provide SBP coverage for the applicant, and since the FSMs daughter has renounced her right to the SBP and acknowledged that she may have to repay all SBP monies paid to her, it appears that it would be equitable at this time to make the requested records correction.
4. The applicant has affirmed she is not currently remarried. If she does remarry before age 55, she will lose her eligibility for the SBP annuity until the remarriage ends in divorce, annulment, or death. She has also affirmed the FSM did not remarry. That affirmation appears to be confirmed by the fact DFAS paid the annuity to the FSMs daughter and not to a widow.
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 decisions in Docket Number AR20050017432 dated 17 August 2006 and Docket Number AR20070004218 dated 20 September 2007. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM made a written request on 9 May 1987 to change his SBP election to former spouse and children coverage; that his request was received and processed by the appropriate office in a timely manner; and that the applicant be paid the SBP annuity retroactive to the date of the FSMs death, provided she was/is otherwise qualified.
__ x______
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070015370
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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