IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090002143 


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 husband, a former service member (FSM), be corrected to show her entitlement to his Survivor Benefit Plan (SBP) and/or reimbursement of all SBP premiums paid by the FSM. 

2.  The applicant states, in effect, in May 1991, her husband, the FSM, retired after serving 21 years in the Army.  Upon his retirement, they married in September 1991.  In February 1992, he attempted to change his marital status and presented all the necessary documents from his first marriage, his DD Form 214 (Certificate of Release or Transfer from Active Duty), and retired identification card to support the change.  They were advised the change would take effect immediately.  In early 1993, upon receipt of her husband's Retirement Statement, they realized that the changes had not been made and the statement still showed his ex-wife's name, social security number, and birth date.  After inquiring as to why the changes had not taken effect, they were advised that there was no record of their submission of relevant documents during a visit to the Naval Office on Whidbey Island, Washington, and to resubmit the paperwork.

3.  The applicant further states, in effect, that the FSM's 1994 Retirement Statement again showed his ex-wife named as the beneficiary for the SBP.  This time, the administrative staff from military offices shown on the Army Echoes Newsletter assured them it was a simple process to fix and to resubmit the marriage certificate, divorce paperwork, and his DD Form 214.  The 1995 Retirement Statement showed the record still remained in error and still showed her husband's ex-wife's name, social security number, and birth date.  Finally, 
the 1996 Retirement Statement showed the name was changed, but not the social security number and the birth date, these still remained those of his ex-wife.  The FSM called the offices in Kentucky and changes were never made.  His Retirement Statement remained in error for the years 1997, 1998, 1999, 2000, and 2001 through 2004.  After several years of fruitless attempts, the FSM wrote to the Defense Finance and Accounting Service (DFAS) in 2001.  At the time of his death in November 2007, the record was still not completely corrected.  The applicant's birth date was still wrong.

4.  The applicant further states that the FSM served 21 years of loyal service in the military.  He was a Vietnam War Veteran and honorably discharged.  He complied with every request from DFAS and had made every attempt to report the change in his marriage status.  As the spouse of the FSM, she feels that she is not only being unjustly denied his SBP, but cheated of the monthly dues for the SBP costs that DFAS has deducted from his retired pay for over 16 years.  If she was not entitled to SBP, then why did DFAS withhold 16 years of monthly dues for SBP cost?  It is evident that DFAS failed to change the record and when it came time to pay, denied her claim for failing to report their marriage within a    12-month period.  The applicant further states that her husband complied with every request from DFAS to report the change in his marital status.  DFAS denied his and her claims for SBP coverage and failed to make the changes to his records.  She strongly feels that DFAS should retroactively reimburse her and pay her the SBP benefits to which she is entitled.

5.  In support of her application, the applicant provides copies of the FSM's DD Form 214, their passports and her certificate of naturalization, the FSM's Certificate of Death, her letters to DFAS and their reply, and her letter to the Board for Correction of Naval Records and their reply.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he initially enlisted in the Regular Army (RA) on 19 May 1970.  

2.  The FSM and his former spouse were married on 30 September 1972 and divorced on 4 January 1988.

3.  On 23 January 1991, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and in Part V (SBP Election) he indicated that he was married and elected the "Spouse Only" SBP coverage option in the amount of $300.00.  It appears that although divorced from his first wife and not yet married to the applicant, the FSM named his first wife, the former spouse, as his 
beneficiary for an SBP annuity.  Documentation shows that the former spouse concurred as his spouse with his SBP election on 1 February 1991.  Her personal information appeared on the concurrence form and she is also listed as his nearest relative and residing at the same address on the FSM's DD Form 214. 

4.  The FSM was honorably separated from the RA on 30 April 1991, for the purpose of retirement for length of service. 

5.  The applicant states that she and the FSM were married in September 1991 (a copy of their marriage certificate was not provided to the Board) and the FSM died on 14 November 2007.  The applicant's name is indicated as his spouse on his death certificate.  

6.  The applicant submitted a copy of her letter to DFAS, dated 12 July 2008, wherein she requested an appeal of the recovery of debt by placing it in a temporary abeyance.  She stated that she was trying to recover the SBP payments which were being withheld due to an error on their part.  

7.  In a letter, dated 1 October 2008, DFAS advised the applicant that she needed to send her documents to the Board for Correction of Naval Records.

8.  The applicant submitted a copy of her letter to the Board for Correction of Naval Records, dated 14 October 2008, wherein she stated that she was forwarding documents for review and consideration.

9.  In a letter, dated 14 November 2008, the Board for Correction of Naval Records, advised the applicant, in effect, that her request contained insufficient information to enable the Board to review and/or interpret her contentions.  She was advised to complete and submit the enclosed DD Form 149 (Application for Correction of Military Record) to the Army Board for Correction of Military Records (ABCMR).  On 14 November 2008, the applicant resubmitted her paperwork to the Board for Correction of Naval Records and on 29 December 2008 that Board forwarded her request to the ABCMR for appropriate action.

10.  On 13 May 2009, a staff member at DFAS verified that according to their records there was no lawful beneficiary to the FSM's SBP annuity since he was not married at retirement.  He and his and former spouse were divorced prior to his retirement.  SBP coverage was not indicated as a requirement in their divorce decree and neither party deemed the election within one year of retirement, so the former spouse was not eligible.  The applicant married the FSM in "1995," but he did not inform DFAS within a year of the marriage, so the applicant was not eligible.  Someone mistakenly thought that the applicant was and started the 
SBP annuity.  The applicant received two payments which DFAS later had to collect.  The retiree basically had no eligible SBP beneficiary throughout his retirement.  The DFAS official further stated that they were not notified of this until quite late, so they could not refund all of the SBP premiums paid.  DFAS was required by law to only refund the premiums paid during the 6 years before the retiree's death.  They could not go back any further.  The DFAS official further stated that it appeared the funds were paid to the applicant around the end of March 2008.

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM and his former spouse were married on 30 September 1972 and divorced on 4 January 1988.  Although the FSM and his former spouse were divorced at the time he submitted his application for retirement in 1991, he indicated her as the beneficiary for an SBP annuity under the "Spouse Only" option and she concurred with his election.  

2.  The FSM had no spouse at the time of his election of spouse coverage; therefore, his election was invalid.  He had the option of electing former spouse coverage or insurable interest coverage, but not spouse coverage if he was not married at the time.  Under the law, in order for him to obtain spouse coverage for the applicant, he was required to make an election of spouse coverage within one year of their September 1991 marriage.  If he missed the one-year post-marriage enrollment window, he could have sought enrollment during a Congressionally mandated Open Season enrollment period at least two of which occurred between the dates of his marriage to the applicant and his death on 14 November 2007.  There is no evidence the FSM exercised either option.

3.  The applicant has provided no evidence supporting her contentions that the FSM was unjustly denied the opportunity to make a proper election of spouse 
coverage for the applicant between the dates of their marriage and his death.  The applicant has also not provided sufficient evidence of intent on the part of the FSM to provide her an annuity under the SBP.  Therefore, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to be granted SBP spouse benefits. 


4.  DFAS verified that the FSM never changed his elected option to "Former Spouse," never indicated that he was divorced or remarried, and there was no evidence he timely filed an SBP election on behalf of the applicant within a year of their marriage.  DFAS issued the applicant two payments which were later collected because she was not entitled to an SBP annuity because the FSM was not married at the time of his retirement and had not elected coverage for her within one year of their marriage.  In March 2008, DFAS also refunded the applicant some of the SBP premiums that had been paid by the FSM.  They were only allowed by law to refund premiums paid during the 6 years before his death.

5.  Based on the foregoing, the FSM made an invalid election in 1991, paid premiums, and neither his former spouse nor the applicant is categorically eligible to receive an SBP annuity.  Therefore, his records should be corrected to show that he made no SBP election at all and all premiums paid for his invalid election until his death, if they have not been repaid, should be refunded to the applicant.

6.  In view of the foregoing, the FSM's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ___X____  ___X____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing that he was not married and elected not to participate in the SBP at all on 23 January 1991 and all premiums paid by him until his death on 14 November 2007 be refunded to the applicant, if they have not already been paid to the applicant.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to correction to the FSM's records to show he elected spouse coverage under the SBP for the applicant.




      ___________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)                                         AR20090002143



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ABCMR Record of Proceedings (cont)                                         AR20090002143


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