BOARD DATE: 29 March 2011
DOCKET NUMBER: AR20100018996
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:
* It was her former husband's intent for her to receive the SBP annuity
* He continued to make payments after their divorce and until he died
* They were never made aware that a deemed election was required
* It was not until after the FSM's death that the Defense Finance and Accounting Service (DFAS) informed her of the process; otherwise, they would have sought to correct this error appropriately
3. The applicant provides:
* Letter, dated 18 June 2010, from DFAS
* DA Form 4240 (Data for Payment of Retired Army Personnel)
* Statement of Service Member's SBP Counseling
* Statement of Receipt of SBP Election and Fact Sheet
* Statement of Spousal Concurrence
* Divorce Judgment
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 1 September 1960. The FSM and the applicant married on 24 November 1984.
2. His DA Form 4240, dated 22 June 1990, and supporting documentation show he enrolled in the SBP for spouse coverage, minimum base amount ($349.00).
3. He retired in the rank of sergeant major on 30 September 1990 after completing over 30 years of active service.
4. He and the applicant divorced on 2 September 2004.
5. He died on 13 June 2009. His marital status is listed as "divorced."
6. Records at DFAS show the FSM paid SBP premiums until his death and that no one is currently receiving the annuity.
7. 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.
8. 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.
9. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
10. 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.
11. 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 applicant an SBP annuity.
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 November 2004 and the request was accepted and processed by the appropriate office in a timely manner; and
b. Paying the applicant the SBP annuity effective 14 June 2009, the day after 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) AR20100018996
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ABCMR Record of Proceedings (cont) AR20100018996
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