IN THE CASE OF:
BOARD DATE: 24 MARCH 2009
DOCKET NUMBER: AR20080009597
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant, the former spouse of a deceased former service member (FSM), requests, in effect, that the records of the FSM be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse and children coverage.
2. The applicant states, in effect, that during divorce proceedings, their lawyers failed to tell them that they had to fill out papers in his military records stating that they were divorced.
3. The applicant provides in support of her application, copies of the FSM's Retiree Account Statement, DA Form 4240 (Data for Payment of Retired Army Personnel), daughter's high school diploma, Final Decree of Divorce, Certificate of Death, Marriage Certificate, DD Form 2656-7 (Verification for Survivor Annuity), and child support and alimony payment history.
CONSIDERATION OF EVIDENCE:
1. On 5 December 1967, the FSM was inducted into the Army in Montgomery, Alabama, and he successfully completed his training as an infantryman.
2. The applicant and the FSM married on 30 May 1969.
3. The FSM remained on active duty through a series of reenlistments.
4. On 17 May 1991, the FSM completed a DA Form 4240 and elected to participate in the SBP for spouse and dependent children coverage, reduced base amount. The DA Form 4240 that the FSM completed shows that his children's dates of birth are 20 January 1971, 2 August 1973, and 7 March 1984.
5. The FSM retired on 1 October 1991. The FSM and the applicant divorced on 22 June 1993 and the Final Decree of Divorce did not mention the SBP. The FSM died on 31 January 2008. His death certificate shows his marital status as divorced.
6. On 4 March 2009, a Board analyst contacted the Defense Finance and Accounting Service (DFAS) and was informed that DFAS had no record of the FSM remarrying and that he had continued to pay spouse premiums until he died. The DD Form 2656-7 that the applicant submitted in support of her application shows that she never remarried.
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 to include Reserve Component members.
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 1 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 1993, the divorce decree did not mention the SBP. However, DFAS confirmed that the FSM continued to pay spouse SBP premiums until his death 15 years later, indicating intent on his part to continue to provide SBP coverage for the applicant. However, he failed to make a written request to change his spouse and children coverage to former spouse and children coverage within 1 year of the divorce. That failure meant that there was no beneficiary for the SBP annuity when he died.
3. Records at DFAS show no one is currently receiving the SBP annuity. However, since there is clear indication that it was the FSMs intent to continue to provide SBP coverage for the applicant, 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. The available evidence of record indicates that the FSM did not remarry and as previously stated, the applicant continued to pay SBP spouse premiums until he died.
5. In view of the foregoing, it would now be in the interest of justice to correct the FSM's records as recommended below.
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 showing that the FSM made a written request on 23 June 1993 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.
________XXX_________________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080009597
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