IN THE CASE OF:
BOARD DATE: 16 SEPTEMBER 2008
DOCKET NUMBER: AR20080011063
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 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) coverage to former spouse coverage.
2. The applicant states, in effect, that the Defense Finance and Accounting Service (DFAS) denied her SBP benefits because she was divorced from the FSM and she had not made a deemed-election within 1 year of her divorce. She contends that neither she nor the FSM knew about the former spouse law that went into effect in March 1986. She also contends that the FSM was divorced at the time of his death and had made all SBP premium payments until he died.
3. The applicant provides a letter from DFAS, dated 28 May 2008; a copy of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of the FSM's DA Form 4240 (Data for Payment of Retired Personnel); various correspondence from DFAS denying her SBP; a copy of a "Guide to Survivor Benefits"; a copy of the FSM's SBP Premium Bill for June 1999; copies of correspondence with the Department of Veterans Affairs (DVA) regarding survivor benefits; a copy of the FSM's death certificate; a copy of the applicant's marriage certificate; a copy of the final decree of divorce; and a copy of a protection order and warrant of arrest.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM and the applicant married on 17 November 1982.
3. Part IV (Survivor Benefit Plan Election) on the FSM's DA Form 4240, dated
6 December 1982, shows he enrolled in the SBP for spousal coverage, full base amount.
4. On 8 December 1982, the FSM retired.
5. The FSM and the applicant divorced on 12 May 1995.
6. The FSM died on 5 August 2000. The death certificate shows his marital status as divorced.
7. Records at DFAS show that the FSM continued to pay SBP premiums until his death and that no one is currently receiving the annuity.
8. The applicant provided a copy of her divorce decree from the FSM. It is silent pertaining to the SBP.
9. 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.
10. Public Law 97-252, the Uniformed Services Former Sp Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity
to a former spouse to make such an election. If the servicemember fails or refuses to make a former spouse coverage 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. 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. Former spouse coverage can also be accomplished with a voluntary written agreement.
DISCUSSION AND CONCLUSIONS:
1. Although there is no evidence to show that either the FSM or the applicant requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, the FSM continued to pay SBP premiums until his death as verified by DFAS.
2. It appears that the FSM never remarried and his death certificate shows that he was divorced. No one is currently receiving the annuity. 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:
__XXX __ __XXX__ __XXX__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 the FSM elected SBP former spouse coverage on 12 May 1995.
2. That the Defense Finance and Accounting Service pay the applicant the SPB annuity, retroactive to the FSM's date of death, provided she is otherwise eligible.
___ 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.
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