IN THE CASE OF:
BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090005481
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 that he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse coverage at the time of their divorce and that she is the sole beneficiary of his SBP annuity.
2. The applicant states that the FSM did not update the records subsequent to their divorce in 1998.
3. The applicant provides a copy of the FSM's death certificate, dated 17 December 2008; a copy of her marriage license, dated 10 October 1974; a copy of her divorce decree, dated 20 July 1998; and a copy of the FSM's Retiree Account Statement, dated 3 January 2006, in support of her request.
CONSIDERATION OF EVIDENCE:
1. The FSM's records show that he was born on 19 April 1953 and entered military service on 8 July 1971. His records also show that he and the applicant, P-------, were married on 10 October 1974.
2. On 22 May 1991, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated that he was married and had dependent children. He further elected spouse and children, full SBP coverage, and listed P-------, the applicant, as his spouse, and Ch-------, born on 17 March 1976, as his daughter. He and a witness authenticated this form by placing their signatures in the appropriate blocks.
3. The FSM's records also show he was honorably released from active duty on 31 July 1991 and transferred to the retired list in his retired rank of staff sergeant on 1 August 1991. He was credited 20 years and 23 days of creditable active service.
4. On 20 July 1998, the FSM and applicant were divorced. The Divorce Decree did not address or mention the SBP.
5. On 17 December 2008, the FSM died. His certificate of death shows the entry "NA" under "Surviving Spouse Name" indicating his marital status was divorced the time of death.
6. The FSM's Retiree Account Statement, dated 3 January 2006, shows he continued to pay premiums for spouse coverage through the date of this statement. Additionally, officials at the Defense Finance and Accounting Service (DFAS) state that he continued to pay premiums through the date of death.
7. 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.
8. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the records of her former spouse, a FSM, should be corrected to show that he changed his SBP coverage from "spouse" to "former spouse" coverage at the time of their divorce and that she is the sole beneficiary of his SBP annuity.
2. The evidence of record shows that prior to his retirement in 1991, the FSM elected full SBP spouse and children coverage. He and the applicant were divorced on 20 July 1998. The divorce decree is silent on the issue of the SBP. The FSM change did not change his SBP election from "spouse" to "former spouse" within one year of the divorce.
3. There is no indication in the FSM's pay records that he remarried at a later date and his death certificate shows the entry "N/A" under "Surviving Spouse Name." He further continued to pay SBP premiums until his death. There is sufficient evidence to show that the FSM's intent was to continue coverage for his former spouse.
4. Therefore, it would be equitable to correct the FSM's records to show that he made a timely request for a change of SBP coverage from "spouse" to "former spouse," that his election was received and processed by DFAS, and that she, the applicant, is entitled to a former spouse annuity.
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 the FSM made a timely request to change his SBP coverage from spouse and children to former spouse and children coverage within one year of the divorce;
b. showing that his request was received and processed by the appropriate office in a timely manner; and
c. that DFAS pay the applicant the SBP annuity as a result of the above correction, retroactive to the day following the FSM's death on 17 December 2008.
_______ _ 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) AR20090005481
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ABCMR Record of Proceedings (cont) AR20090005481
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