IN THE CASE OF:
BOARD DATE: 12 May 2009
DOCKET NUMBER: AR20080018817
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) spouse and child(ren) coverage to former spouse and child(ren) coverage.
2. The applicant states, in effect, she was unaware of the requirement to change the SBP election based on their divorce. She found out when she reported the FSM's death on 19 November 2008.
3. The applicant provides, in support of her application, copies of the FSM's
DD Form 214 (Certificate of Release or Discharge from Active Duty), marriage license, two Retiree Account Statements, Judgment of Absolute Divorce, and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM's DD Form 214 shows that he enlisted in the Regular Army on
19 August 1983. At the time, he had completed more than 5 years of prior active duty service.
2. On 14 February 1987, the FSM and the applicant married.
3. The FSM served through a series of enlistments and retired due to length of service on 30 November 2000. He had attained the rank of sergeant first class, pay grade E-7, and had completed a total of 22 years, 6 months, and 11 days of creditable active duty service.
4. The FSM's DFAS-CL 7220 (Retiree Account Statement), effective
7 December 2000, shows that he had elected SBP coverage for spouse and child(ren).
5. The Judgment of Absolute Divorce, effective 19 July 2006, required, in effect, the applicant and FSM to complete the documents required for reassigning his SBP benefit from spouse and child(ren) to former spouse and child(ren).
6. The FSM's DFAS-CL 7220, effective May 2008, shows that he was still making payments for SBP coverage for spouse and child(ren).
7. The FSM's death certificate shows that he died on 14 November 2008. The death certificate also shows that he was divorced.
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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
10. 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.
11. Title 10, U.S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. If that person fails or refuses to make such an 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM's military records should be changed to show that he had elected SBP coverage for former spouse and child(ren).
2. When the applicant divorced in July 2006, the Judgment of Absolute Divorce assigned the SBP benefit to his former spouse. There is no evidence showing that either the FSM or the applicant took any action to change the SBP election as required by the divorce decree.
3. The evidence clearly shows that the applicant continued to make SBP payments from his retiree pay account and was still divorced at the time of his death.
4. Based on the evidence in this case, it would be equitable to correct the FSMs records to show he changed his SBP election from spouse and child(ren) coverage to former spouse and child(ren) coverage in the manner prescribed by law.
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:
a. showing that he made a written request to change his SBP spouse coverage to former spouse and child(ren) coverage on 19 July 2006 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
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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