IN THE CASE OF:
BOARD DATE: 17 July 2012
DOCKET NUMBER: AR20120000832
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 that 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 the divorce decree named her as the beneficiary of the FSM's SBP account; however, no action was taken by the FSM to change the account to former spouse and no one told her that action was required or that she could request the change. She goes on to state that he never remarried and continued to pay the premiums. She also states that she has accumulated a lot of debt due to the death of the FSM, because he was living in her house at the time of death, which needs a lot of repairs. She continues by stating that after
25 years of marriage to the FSM she needs the financial assistance the SBP annuity will provide to help her dig her way out of debt.
3. The applicant provides a one-page letter explaining her application, copies of the FSMs death certificate, the FSMs DD Form 214 (Certificate of Release or Discharge from Active Duty), the divorce decree, a DD Form 2656-7 (Verification for Survivor Annuity), and associated documents.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 29 October 1974 and remained on active duty through a series of continuous reenlistments. He married the applicant on 9 June 1980 and was promoted to the pay grade of E-6 on 17 December 1980.
2. On 8 November 1993, the FSM made a spouse only SBP election for coverage at a reduced base amount of $400.00. The applicant concurred with the election and the form was witnessed and signed at the Retirement Services Office, Fort Campbell, Kentucky on the same date.
3. On 31 January 1994, he was retired and transferred to the Retired List in the pay grade of E-6 effective 1 February 1994. He had served 20 years and 2 days of active service.
4. On 12 May 2006, the applicant and the FSM were divorced in Montgomery County, Tennessee. The divorce decree stated the applicant was to receive the FSMs SBP benefits and the FSM agreed to pay the premiums.
5. On 1 June 2011, the FSM died in Montgomery County, Tennessee, at the age of 57, and his death certificate indicates he was divorced at the time of death. The applicant was named as the informant on the death certificate.
6. Public Law 92-425, the SBP, enacted 21 September 1972, 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.
7. 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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
8. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
9. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. 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. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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. Neither the FSM nor the applicant took the required actions to change the FSM's SBP coverage to former spouse coverage within the 1-year time limit established by law. However, the FSM did not remarry and he continued to pay SBP premiums until he died.
2. It appears it was the FSM's intent to provide SBP coverage to the applicant after their divorce. Therefore, it would be equitable to correct the FSM's records to show he did so.
3. In view of the foregoing, the FSMs records should be corrected as recommended below.
BOARD VOTE:
__X_____ ___X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 the FSM requested, in writing, to change his SBP coverage to former spouse coverage on 1 August 2006 and that his request was received and processed by the appropriate office in a timely manner.
2. That the applicant be paid the SBP annuity effective 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) AR20120000832
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