BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100009351
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, the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states:
* Her divorce decree awarded her the SBP
* She was not aware of the requirement to file a change in SBP election eligibility
* She was married to the FSM at the time of his retirement and he elected SBP for spouse coverage
* They divorced on 20 August 1998
* The FSM continued to make monthly premiums until his death on 16 November 2005
* When she attempted to file for SBP benefits, she was informed she was supposed to notify the retirement services of her changed status from spouse to former spouse
* Her claim was denied
3. The applicant provides:
* Divorce decree
* FSM's death certificate
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* DD Form 2656-6 (SBP Election Change Certificate)
* Email sent to DFAS
* Marriage certificate
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM's Retiree Account Statement
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM enlisted in the Regular Army on 12 November 1970. He and the applicant married on 22 April 1972.
3. The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 7 August 1990, shows he enrolled in the SBP for spouse and dependent children coverage, full base amount.
4. The FSM retired in the rank of staff sergeant on 30 November 1990 after completing over 20 years of active service.
5. The FSM and the applicant divorced on 20 August 1998. The divorce decree shows the applicant is awarded (i.e., named as the beneficiary under) the SBP.
6. The FSM died on 16 November 2005. His marital status is listed as "divorced."
7. Records at the Defense Finance and Accounting Service (DFAS) show that no one is currently receiving the annuity.
8. The applicant provided a copy of the FSM's Retiree Account Statement, dated 2 January 2004, which shows he continued to pay SBP premiums (spouse coverage) after their divorce.
9. 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. Elections are made by category, not by name.
10. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
11. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
12. 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 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.
13. 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. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. Although there is no evidence to show that either the FSM or the applicant requested his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears it was the FSM's intention to provide the SBP annuity to the applicant.
2. The FSM continued to pay SBP premiums after their divorce, he never remarried, and no one is currently receiving the annuity. It would be equitable to correct his records to show he requested to change his SBP coverage to former spouse coverage in a timely manner.
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:
a. the FSM made a written request to change his SBP coverage to former spouse on 1 September 1998 and the request was accepted and processed by the appropriate office in a timely manner and
b. the applicant is paid the SBP annuity effective 16 November 2005, 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) AR20100009351
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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