IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090013720
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 to former spouse coverage.
2. The applicant states it was the FSM's intent that she receive benefits under the FSM's SBP. She offers that he paid into the program and did not remove her name or her information from the file. She maintains that neither the FSM nor she were aware of the policy concerning divorce. The applicant states FSM thought a divorce was needed based on his medical condition and the fact that he did not want to be a burden to her. However, she adds that she became his primary caregiver despite their marital status.
3. The applicant provides three supporting statements, a divorce decree, a death certificate, and a Retiree Account Statement (RAS).
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 29 January 1953 and was retired on 1 July 1973.
2. On 8 January 2003, the FSM and the applicant divorced. There is no mention of SBP in the divorce decree. The statement of agreement incorporated into the divorce was not provided. However, the question of whether the applicant was or was not given SBP upon divorce from the FSM is not a controlling factor given the other facts in this case.
3. The FSM died on 3 January 2009. The death certificate lists his marital status as divorced.
4. Supporting statements from the FSM's primary care physician, his neurologist, and his cardiologist all verify the applicant was the FSM's primary caregiver. The primary care physician stated that the applicant was very involved with the FSM's care and was with him during his multiple appointments. He also said that the applicant was the FSM's primary contact person in case of any difficulties or emergencies.
5. The FSM's RAS, dated 2 December 2008, shows that he had spouse-only coverage with a spouse-only cost listed as "0.00" and an annuity base amount of $1,880.37.
6. In the processing of this case, the Board's staff contacted the Defense Finance and Accounting Service (DFAS). DFAS informed the Board's staff that there was nothing in its database that indicated the FSM was divorced prior to his death. Additionally, DFAS stated that the database shows that the FSM continued to pay SBP premiums until he was paid-up, effective 1 October 2008.
7. 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.
8. Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.
9. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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 1 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.
10. Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP. Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of: (1) the 360th month for which the participant's retired pay is reduced or (2) the month during which the participant attains age 70.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM elected to participate in the SBP for spouse only when he was married to the applicant. The applicant's paid-up contributions were completed on 1 October 2008 after his divorce which occurred on 8 January 2003.
2. The FSM continued to pay SBP premiums for 5 years after his divorce from the applicant and did not remove her name as the beneficiary. These facts provide credence to the applicant's claim that the FSM's intent was that she receive his SBP benefits. Therefore, it appears the FSM would have taken the proper actions to insure the applicant remained the beneficiary of his SBP if he had known those actions were required.
3. As such, it would be equitable and just to correct the FSM's records to show he voluntarily converted his SBP spouse coverage to former spouse coverage in a timely fashion.
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 voluntary change in election from spouse to former spouse on 1 January 2004 and that the request was received and processed by the appropriate office in a timely manner and
b. paying the applicant the SBP annuity retroactive to the date of the FSM's 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) AR20090013720
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ABCMR Record of Proceedings (cont) AR20090013720
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