IN THE CASE OF:
BOARD DATE: 31 March 2015
DOCKET NUMBER: AR20140011281
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 correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states:
a. A DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) was not filed by her or the FSM within 1 year of their divorce.
b. Their divorce decree clearly states she did not waive her rights to survivor benefits if the FSM predeceased her. The FSM continued to pay for SBP coverage until his death.
c. She now understands that she had the option to file the DD Form 2656-1, but she was not aware of this obligation at the time of their divorce. She does recall her attorney saying the judge would not sign the divorce decree until a certain form was filed. Her attorney is retired now and she has no way of establishing whether the DD Form 2656-1 was filed by her attorney.
d. She is saddened by her ex-husband's death and it's truly a loss to their family. She knows it was his intent that she would receive his retired pay. The FSM never remarried so there are no other spouses making a claim to his retired pay. She never remarried either.
e. The money will be used primarily to provide financial assistance to their grown children and grandchildren as his legacy.
3. The applicant provides:
* letter from the Defense Finance and Accounting Service (DFAS), dated 30 May 2014
* FSM's Retiree Account Statement
* FSM's death certificate
* divorce decree and property settlement agreement
CONSIDERATION OF EVIDENCE:
1. The FSM entered active duty on 4 April 1969.
2. He married the applicant on 10 June 1971.
3. His records contain a DD Form 4240 (Data for Payment of Retired Army Personnel), dated 12 May 1988, that shows he elected spouse and children SBP coverage, full base amount.
4. He retired on 31 May 1988 in the rank of major.
5. He and the applicant divorced on 24 April 2002. Their property settlement agreement states the FSM is to provide SBP coverage for the applicant.
6. There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse within 1 year of their divorce.
7. The FSM died on 9 April 2014. His death certificate shows his marital status as divorced.
8. The applicant provided a copy of the FSM's Retiree Account Statement, dated 1 November 2012, which shows he continued to pay SBP premiums (spouse coverage) after their divorce.
9. 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.
10. 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.
11. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
12. 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.
DISCUSSION AND CONCLUSIONS:
1. Although there is no evidence to show the FSM requested changing his SBP spouse coverage to former spouse coverage within the statutory 1-year time limit, it appears it was the FSM's intention to provide the SBP annuity to the applicant.
2. The FSM continued to pay SBP premiums after their divorce and he never remarried. It would therefore 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 the evidence presented is 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 FSM made a written request to change his SBP spouse coverage to former spouse coverage on 1 May 2002 and the request was accepted and processed by the appropriate office in a timely manner; and
b. paying the applicant the SBP annuity effective 10 April 2014, 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) AR20140011281
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ABCMR Record of Proceedings (cont) AR20140011281
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