IN THE CASE OF:
BOARD DATE: 18 February 2009
DOCKET NUMBER: AR20080017237
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 that the records of her former husband, a Former Service Member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage.
2. The applicant states the FSM told her that he changed his SBP coverage to former spouse and that he was paying for the SBP as ordered in their divorce decree.
3. The applicant provides a Final Decree of Divorce dated 15 June 1992 and the FSM's Certificate of Death.
CONSIDERATION OF EVIDENCE:
1. The FSM, a lieutenant colonel, was honorably released from active duty on 19 April 1990 by reason of physical disability and placed on the Retired List the following day, rated 30 percent disabled. At that time he elected SBP coverage for spouse only at the reduced amount of $1,369.00. The applicant signed a spousal concurrence statement indicating that she concurred with the FSM's election although her concurrence statement (a check mark) did not indicate the reduced base amount.
2. In the processing of this case the Defense Finance and Accounting Service (DFAS) was contacted by the Board's staff. The DFAS stated that the applicant has had SBP since his retirement date, and the Annuitant is the applicant.
3. In the Final Decree of Divorce dated 15 June 1992 it was stated "IT IS FURTHER ORDERED AND DECREED that [the FSM] do such other acts, deeds, and things as are necessary to immediately designate [the applicant] the beneficiary of the Armed Services Survivor Benefit Plan."
4. The FSM's Certificate of Death shows he died on 14 April 2008. His marital status on this certificate was listed as divorced.
5. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law.
6. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
7. Title 10, U. S. Code (USC), Section 1448(b)(3) provides for 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.
8. Title 10, USC, Section 1450 (under Public Law 98-525, 19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:
a. a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and
b. a copy of court order or other official statement, either:
(1) copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or
(2) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence that the FSM elected former spouse SBP coverage for the applicant, as required by his divorce decree. There is also no evidence that the applicant made a deemed election within a year of the divorce decree.
2. As such, the applicant is not entitled by law to former spouse SBP.
3. However, the fact that the FSM continued paying his SBP premiums indicates that he believed that the applicant was still being provided SBP coverage.
4. Therefore, the error in this case appears to be simply that the FSM failed to complete the required documents to elect former spouse SBP coverage for the applicant even though that was his intent.
5. As such, it would 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 he elected SBP former spouse coverage in a timely manner and that the applicant be paid the SBP annuity retroactive to the day after his death.
_________X_____________
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) AR20080017237
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ABCMR Record of Proceedings (cont) AR20080017237
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