IN THE CASE OF:
BOARD DATE: 12 July 2012
DOCKET NUMBER: AR20110022177
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 he elected former spouse coverage under the Survivor Benefit Plan (SBP).
2. The applicant states, that the FSM paid the premiums for her to receive an SBP annuity upon his death and he often spoke about the benefit he was providing for her. She goes on to state that clearly he was not aware or fully informed that he had to do anything more than pay the premiums.
3. The applicant provides a copy of her marriage license, the FSMs death certificate, a statement from the executor of the FSMs estate, and a copy of a letter accompanying the FSMs will indicating his intent to provide the SBP annuity to his former spouse, her.
CONSIDERATION OF EVIDENCE:
1. The FSM was commissioned as a U.S. Army Reserve second lieutenant on 5 June 1960 and married the applicant on 18 June 1960. He entered active duty on 17 February 1961 and in August 1976 he and the applicant divorced. He was promoted to the rank of colonel on 1 June 1981.
2. On 10 January 1991, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated that he was single at the time and he elected former spouse coverage at a reduced amount of $2,000. He named the applicant as his former spouse.
3. On 31 January 1991, the FSM was retired by reason of permanent physical disability (100%). He had served 29 years, 11 months, and 14 days of active service.
4. The FSM died on 28 July 2011 at the age of 73.
5. The copy of the letter left by the FSM to accompany his will which is provided by the executor and oldest child of the FSM clearly states that he participated in the SBP to provide his former spouse with an annuity for the rest of her life.
6. Information obtained from the Defense Finance and Accounting Service (DFAS) indicates that the FSM continued to pay SBP premiums for spouse coverage until his death and that there was no award of the SBP in the divorce decree.
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.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.
9. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.
DISCUSSION AND CONCLUSIONS:
1. While there was no award of the SBP made in the applicants and FSMs divorce proceedings, the absence of such an award did not preclude the FSM from making a voluntary former spouse election and paying the premiums for such an election.
2. The available evidence of record shows that the FSM completed the forms necessary to make a former spouse election at the time of his retirement processing and for reasons not explained in the available records, it appears that the DFAS processed his election as a spouse, rather than a former spouse, election.
3. However, it is vividly clear that the FSMs intent at the time was to provide a reduced SBP annuity to his former spouse and it appears that he took the necessary steps to do so. However, due to an administrative error his election was not properly processed by DFAS. DFAS officials did state that the FSM paid for spouse coverage and premiums were deducted from his retired pay.
4. Therefore, it would be in the interest of justice to correct the FSMs records to show that he made a proper former spouse election at the time of his retirement to provide the applicant with an SBP annuity at a reduced base amount of $2,000.
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 that he made a proper former spouse election at the time of his retirement to provide the applicant with an SBP annuity at a reduced base amount of $2,000
* paying to the applicant the SBP annuity retroactive to 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) AR20110022177
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110022177
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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