IN THE CASE OF:
BOARD DATE: 23 July 2013
DOCKET NUMBER: AR20120021154
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 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:
* she and the FSM were married on 7 June 1958
* when he retired from the Army on 1 September 1980 they chose to get SBP for spouse and child coverage at a reduced base amount of $300.00
* they divorced on 16 May 1991
* according to the divorce settlement she was to keep the SBP, which was done, but the election wasn't changed to former spouse
* the FSM agreed to continue to maintain her on the SBP
* the SBP premiums were paid up on 1 September 2010
* she would like to receive the SBP
3. The applicant provides:
* marriage certificate
* divorce settlement
* FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. After having prior enlisted service, the FSM was commissioned as a second lieutenant in the Regular Army on 4 June 1958 and he entered active duty. He and the applicant married on 7 June 1958.
2. His DA Form 4240 (Data for Payment of Retired Army Personnel), dated
20 June 1980, shows he enrolled in the SBP for spouse and dependent children coverage, reduced amount.
3. The FSM retired in the rank of lieutenant colonel on 31 August 1980.
4. The FSM and the applicant divorced on 8 May 1991. The divorce decree states the FSM agreed to continue to maintain the applicant on the SBP.
5. The FSM died on 2 October 2012. His death certificate shows he was divorced.
6. Records at the Defense Finance and Accounting Service (DFAS) show there is no eligible beneficiary effective 8 May 1991 and no additional premiums were collected after that point.
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 the applicant contends the SBP premiums were paid up on
1 September 2010, DFAS records indicate no premiums were collected after May 1991. It appears the FSM provided the divorce decree to DFAS but failed to honor the terms of the agreement by changing his record to reflect former spouse coverage.
2. Although the applicant failed to submit a timely request for a deemed election of former spouse coverage, it would be appropriate as a matter of equity to grant relief based on the terms of her divorce from the FSM especially where there is no person with a superior interest in SBP. Past due premiums will have to be paid.
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 applicant submitted a deemed election request to change the FSM's SBP election from spouse to former spouse on 1 June 1991;
b. showing her request was timely received and processed by DFAS; and
c. paying her the annuity minus any unpaid premiums.
_______ _ _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) AR20120021154
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120021154
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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