IN THE CASE OF:
BOARD DATE: 18 November 2010
DOCKET NUMBER: AR20100011371
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, the ex-spouse of a deceased former service member (FSM), requests correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states that she and her ex-husband were married for 45 years in which he paid on SBP for the required 30 years after retirement and neither he nor she ever remarried. She goes on to state that she received monthly support until his death on 18 December 2009 and she believed that the FSM had taken care of all of the paperwork needed to continue her SBP coverage according to the divorce agreement. However, it was not until she filed her claim for SBP benefits that she discovered that such was not the case.
3. The applicant provides:
* A copy of her divorce degree from the FSM
* A copy of her marriage license
* A copy of the FSMs death certificate
* A DD Form 2656-7 (Verification for Survivor Annuity) with attached documents
CONSIDERATION OF EVIDENCE:
1. The FSM was commissioned as a second lieutenant upon graduation as a Distinguished Military Graduate from the Virginia Military Institute on 7 June 1955 and he entered active duty as an engineer officer. He continued to serve as an engineer officer throughout his career and he married the applicant on 9 September 1961. He was promoted to the rank of lieutenant colonel on 8 July 1969.
2. On 15 July 1976, the FSM made an SBP election in which he elected spouse only coverage at a reduced amount of $300.00.
3. On 31 July 1976, the FSM was retired and he was transferred to the Retired List effective 1 August 1976.
4. The FSM divorced the applicant in Henrico County, VA on 21 June 2004 and the divorce decree directed that the FSM make the necessary election in a timely manner to effectuate the SBP coverage for the former spouse and execute the necessary paperwork as required. The divorce decree also directed the applicant to send the necessary documents to the Defense Finance and Accounting Service (DFAS). The FSM died on 18 December 2009 and his death certificate indicates he was divorced.
5. In the processing of this case a staff member of the Board contacted officials at DFAS to determine what the FSMs SBP election was. Officials at DFAS indicated that the FSM has a spouse only election which he paid until 30 September 2008 when he went into a paid-up status. It was not until DFAS was notified of his death that they were informed that he was divorced.
6. 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.
7. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted on 8 September 1982, established SBP coverage for former spouses of retiring members.
8. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
9. 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.
10. 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 one 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 that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears that it was the FSM's intent 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. Therefore, it is reasonable to presume that the FSM believed that because he was paying the premiums no further action was required and that his former spouse would receive the SBP annuity.
3. Accordingly, it would be equitable to correct his records to show that 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:
a. showing the FSM made a written request to change his SBP coverage to former spouse coverage on 1 August 2004;
b. showing the request was timely received and processed by DFAS; and
c. paying the applicant the SBP annuity effective 18 December 2009, 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.
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