IN THE CASE OF:
BOARD DATE: 27 May 2014
DOCKET NUMBER: AR20130014138
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 former spouse of a deceased retired former service member (FSM), requests entitlement to an annuity under the Survivor Benefit Plan (SBP).
2. The applicant states her divorce decree specifically states she is entitled to the SBP annuity. She was unaware that she had to file paperwork within 1 year of the date of their divorce. She was receiving monthly benefits until her former spouse's death on 26 July 2012.
3. The applicant provides a:
* certificate of death
* two divorce decrees, one undated and one dated 23 January 2001
* two notices of hearing, dated 15 and 20 February 2001
* eleven additional legal documents/motions, dated between 5 December 2000 and 21 May 2001
* Application for Death Benefits - Civil Service Retirement System, dated 20 September 2012
* two bank loan payment notices, dated 3 February 2013 and 3 June 2013
* letter, dated 27 March 2013
* Greenhills Homeowners account statement, dated 1 April 2013
* Department of the Treasury Billing Summary, dated 1 May 2013
* Topeka Surgery Center account statement, dated 3 June 2013
* Defense Finance and Accounting Service (DFAS) Account Statement, dated 20 May 2013
* Social Security Beneficiary Statement, dated 2013
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 17 January 1949. He and the applicant were married on 23 December 1953. He attained the rank/grade of staff sergeant (SSG)/E-6 on 14 January 1954.
2. He was honorably retired on 31 October 1972 in the rank of SSG and he was placed on the Retired List on 1 November 1972. He was married to the applicant at the time of his retirement.
3. On 1 June 1973, he made an SBP election for "spouse and child" reduced coverage.
4. He and the applicant were divorced on 31 January 2001. On 26 March 2001, the applicant's counsel at the time forwarded the divorce decree to DFAS. The divorce decree shows the FSM represented to the court that he had elected SBP for the applicant and would maintain such coverage. The divorce decree shows the FSM was to provide [former spouse] SBP coverage and the applicant was to pay the SBP costs.
5. On 22 January 2002, the FSM notified DFAS that he elected to stop his SBP as he was divorced and had no eligible beneficiary.
6. The FSM died on 28 July 2012. His certificate of death shows his marital status as divorced.
7. 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. An election, once made, was irrevocable except in certain circumstances. It declared a 12-month open season for those members who retired prior to enactment of the law. Public Law 93-155, enacted 16 November 1973, extended that open season from 12 to 18 months (21 September 1972-20 March 1974).
8. Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members.
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The FSM retired in 1972 and in 1973 he elected SBP "spouse and child" reduced coverage. He and the applicant were divorced on 31 January 2001. There is no evidence in his records that shows he elected to change his SBP to "former spouse" coverage after his divorce from the applicant.
2. However, it is clear the court believed the FSM's representation regarding the existence of SBP for his former spouse and agreement to maintain the coverage and factored it into its analysis when they awarded the applicant the SBP in the divorce decree in 2001 with the costs of the SBP to be paid by the applicant. As the FSM had elected "spouse and child" coverage, he could have changed his election to "former spouse" coverage in order to be in compliance with the divorce decree. He failed to do so.
3. The applicant should not be punished because the FSM failed to comply with the divorce decree when he could have done so at no cost to himself. Therefore, it would be appropriate to grant the applicant relief and show the FSM changed his SBP coverage to "former spouse" upon his divorce on 31 January 2001.
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 FSM be corrected by:
* showing the FSM elected former spouse SBP coverage effective 31 January 2001
* showing the applicant applied for the SBP annuity in July 2012
* paying the applicant the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 29 July 2012, minus costs for the coverage
__________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) AR20130014138
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130014138
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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