BOARD DATE: 10 November 2009
DOCKET NUMBER: AR20090007864
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 Survivor Benefit Plan (SBP) annuity election made by her deceased ex-spouse, a former service member (FSM), be changed to former spouse coverage and that she be provided an SBP annuity accordingly.
2. The applicant states, in effect, that she was told she was not entitled to SBP benefits because only her birth date and not her name was listed on the FSM's SBP paperwork.
3. The applicant provides a Retiree Account Statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), the FSMs death certificate, and their marriage license in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSMs record shows that on 31 July 1994 he was honorably retired from military service, in the rank of sergeant first class (SFC), after completing a total of 20 years and 24 days of active military service. At the time of his retirement, the FSM elected spouse and children SBP coverage.
2. A DD Form 2656 (Data for Payment of Retired Personnel) on file in the FSM's Official Military Personnel File (OMPF) shows that the FSM and applicant were married on 23 March 1985 and that the applicant's date of birth is 17 May 1962.
3. The FSM and the applicant were divorced on 17 May 2002.
4. On 5 January 2009, the FSM died. His death certificate lists his marital status as divorced.
5. The applicant provides a Defense Finance and Accounting Service (DFAS) Retiree Account Statement which shows an SBP premium was deducted from the FSM's December 2006 retired pay on 2 January 2007. It also includes the entry "SPOUSE DOB: May 17, 1962" under the "SURVIVOR BENEFIT PLAN (SBP) COVERAGE" heading.
6. During the processing of this case, a staff member of the Board contacted DFAS to determine if a request was made to change his initial election of SBP coverage from spouse to former spouse. A DFAS official confirmed that the FSM's initial election of coverage remained in effect until 13 April 2009, at which time it was retroactively terminated effective 17 May 2002. The DFAS official further provided the staff member of the Board a copy of the divorce decree and a DD Form 2656-7 (Verification for Survivor Annuity) which was submitted to their office by the applicant on 4 February 2009.
7. The divorce decree provided by DFAS contains no language providing for continued SBP coverage. Further, the record shows that neither the FSM nor the applicant took any action to request a change to the FSMs SBP election to former spouse coverage within a year of the divorce decree being issued, as is required by law.
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.
10. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
11. 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.
DISCUSSION AND CONCLUSIONS:
1. By law, incident to a proceeding of divorce, a member with existing SBP coverage has one year to provide an annuity to a former spouse by making such an election. The FSM failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce.
2. The evidence of record confirms the FSM initially elected SBP coverage for spouse and children at the time of his retirement. Subsequently, the FSM and the applicant were divorced on 17 May 2002. The divorce decree included no provisions for continued SBP coverage. However, premiums were still being deducted from the FSMs retired pay for "spouse only" coverage beyond the date of his death on 5 January 2009 through 13 April 2009, when it was terminated upon notification of his divorce and death through the applicant's request for SBP benefits.
3. Although the court did not order the FSM to make a former spouse election to maintain his initial SBP election, the FSM continued to pay the SBP premiums for nearly 7 years after his divorce through the date of his death. His death certificate lists his marital status as "divorced," so it appears there is no widow with a superior vested interest in SBP. It is therefore reasonable to presume he intended to provide an SBP annuity for his former spouse (the applicant).
4. In view of the facts of this case, it would serve the interest of justice and equity to correct the FSM's record to show he voluntarily changed his SBP coverage from spouse to former spouse within a year of his divorce from the applicant and to provide the applicant the SBP annuity due as a result, minus any additional premium amounts due based on the change in coverage.
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 the FSM voluntarily changed his spouse SBP coverage to former spouse coverage on 17 May 2002, the date of their divorce, and by paying to the applicant the SBP annuity due retroactive to 6 January 2009, the date after the FSM's death, minus any premiums due based on the change in coverage.
_______ _ _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) AR20090007864
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