Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090013720
Original file (20090013720.txt) Auto-classification: Approved

		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





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013720



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2012 | 20120005569

    Original file (20120005569.txt) Auto-classification: Approved

    Counsel argues that: * T____ was the beneficiary of the SBP when the FSM retired through the date of the divorce; she was never deleted as the SBP beneficiary * The FSM made contact with DFAS and OPM to change the SBP designation to former spouse coverage; OPM complied but DFAS did not * The FSM believed no additional documentation was needed and as such, continued to pay monthly premiums until he was paid up * The Board has previously granted relief, directly or indirectly, in multiple...

  • ARMY | BCMR | CY2008 | 20080018916

    Original file (20080018916.txt) Auto-classification: Approved

    The applicant [the former spouse] requests, in effect, that the deceased former service member's (FSM's) records be corrected to show that she was designated the former spouse, beneficiary of the Survivor Benefit Plan (SBP) annuity. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. The...

  • ARMY | BCMR | CY2010 | 20100019607

    Original file (20100019607.txt) Auto-classification: Approved

    The FSM died on 24 August 2008 and she began receiving SBP payments the next month and this continued until January 2009. He and the applicant were divorced on 9 January 1997. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM changed his SBP coverage from "spouse" to "former spouse" within one year of their divorce in February 1997; b. showing his request was timely received and processed by the...

  • ARMY | BCMR | CY2013 | 20130022211

    Original file (20130022211.txt) Auto-classification: Approved

    Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. Even though the FSM continued to pay the SBP premiums neither the applicant nor the FSM made a deemed election for former spouse coverage within one year of the divorce. As a result, the Board recommends that all Department of the...

  • ARMY | BCMR | CY2009 | 20090001548

    Original file (20090001548.txt) Auto-classification: Approved

    The applicant, the former spouse of a deceased former service member (FSM), requests that she be provided an annuity under the FSM’s Survivor Benefit Plan (SBP). Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. As a result, the Board recommends that all Department of the Army records of...

  • ARMY | BCMR | CY2011 | 20110024560

    Original file (20110024560.txt) Auto-classification: Approved

    The applicant’s request to correct the record of the FSM to show he changed his SBP election from spouse to former spouse and that she be provided the SBP annuity has been carefully considered. The evidence of record confirms the FSM elected SBP coverage for his spouse, the applicant, upon his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the FSM elected former spouse SBP coverage for the...

  • ARMY | BCMR | CY2007 | 20070015370

    Original file (20070015370.txt) Auto-classification: Approved

    The FSM and the applicant divorced on 8 May 1987. The FSM died on 23 October 2002, and his eligible minor daughter was paid the SBP annuity. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM made a written request on 9 May 1987 to change his SBP election to former spouse and children coverage; that his request was received and processed by the appropriate office in a timely manner; and that the...

  • ARMY | BCMR | CY2010 | 20100011371

    Original file (20100011371.txt) Auto-classification: Approved

    Application for correction of military records (with supporting documents provided, if any). Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. 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...

  • ARMY | BCMR | CY2014 | 20140009283

    Original file (20140009283.txt) Auto-classification: Approved

    The FSM's records show he was born on 16 January 1944. According to the FSM's Defense Finance and Accounting Service (DFAS) pay records: * the FSM never changed his election to former spouse, but the applicant remained his beneficiary on his pay records * a deemed election was never submitted by the applicant * there is no indication the FSM remarried * the FSM continued to pay SBP premiums until the date of his death * no one is currently claiming his SBP annuity 14. As a result, the...

  • ARMY | BCMR | CY2008 | 20080010076

    Original file (20080010076.txt) Auto-classification: Denied

    The evidence of record shows that the FSM, while still married to the applicant, elected SBP spouse coverage at a reduced amount, prior to his retirement. After retirement, he and the applicant were divorced. Their divorce decree did not obligate the FSM to change SBP coverage from spouse coverage to former spouse coverage; nevertheless, he continued to pay SBP premiums after the divorce and until his death, a period of nearly 5 years.