BOARD DATE: 18 June 2015
DOCKET NUMBER: AR20140014968
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 widow of a deceased former service member (FSM), requests correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) coverage from former spouse coverage to spouse coverage.
2. The applicant states:
a. The FSM submitted all the necessary documentation (former spouse's death certificate, their marriage license, and letters requesting her designation as his SBP beneficiary) to the Defense Finance and Accounting Service (DFAS) to add her to his SBP election. DFAS accepted his request and continued to deduct monthly SBP payments for 205 months until his death.
b. His DFAS Retiree Account Statement also shows her as the SBP beneficiary.
3. The applicant provides:
* FSM's DFAS Retiree Account Statement, dated 10 October 2013
* letters from the FSM to DFAS, dated 8 November 2003 and 25 November 2003
* former spouse's death certificate
* their marriage certificate
* designation of beneficiary information
CONSIDERATION OF EVIDENCE:
1. Having prior enlisted service in the Army National Guard, the FSM was commissioned in the U.S. Army Reserve in 1960. He married S____ on 8 August 1970.
2. The DD Form 1883 (SBP Election Certificate), dated 13 August 1981, shows he elected spouse-only coverage, full base amount.
3. He and S____ divorced on 8 January 1996.
4. The DD Form 2656 (SBP Election Certificate), dated 13 January 1996, shows he elected former-spouse coverage based on full gross retirement pay.
5. The FSM was placed on the Retired List in the rank of colonel effective 13 August 1996.
6. He married D____ in 2001.
7. His former spouse, S____, died on 24 September 2003.
8. The applicant provided letters from the FSM to DFAS, dated 8 and 25 November 2003, which show:
* he requested an immediate stop payment action to his retiree account concerning his deceased beneficiary (S____)
* he requested designation of his spouse (D____) as his SBP beneficiary
9. The applicant provided a copy of the FSM's DFAS Retiree Account Statement, dated 10 October 2013, which shows:
* he continued to pay SBP premiums (spouse coverage)
* D____'s date of birth (DOB) is shown on this statement
* he paid 205 months toward his 360 months of paid-up SBP coverage
10. The FSM died on 30 January 2014. His death certificate shows the applicant as his surviving spouse.
11. 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.
12. 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.
13. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
14. 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. The evidence shows the FSM originally elected spouse coverage for S____ in 1981. He and S____ divorced in 1996 and he elected former-spouse coverage as required by his divorce decree. Accordingly, DFAS accepted his election of former-spouse coverage.
2. The FSM married D____ in 2001.
3. The evidence shows S____ died in September 2003 and the FSM requested a stop payment action to his retiree account concerning his deceased beneficiary (S____) whom he clearly identified as his "ex-spouse" and he requested designation of his current spouse (D____) as his SBP beneficiary on 25 November 2003. It appears DFAS accepted this election since he continued to pay SBP premiums for spouse coverage until his death. In addition, the spouse's DOB shown on this DFAS Retiree Account Statement is D____'s. Although this change was not authorized under the law, for over a decade he paid spouse premiums in the belief that he had spouse coverage. Any opportunity he had to make other arrangements for the financial security of his wife passed.
4. Based on the foregoing evidence, it would therefore be equitable to correct the FSM's records to show his original election of spouse coverage remained in effect.
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 showing he did not change his original 1981 election of spouse coverage to former spouse coverage in November 2003 and paying the applicant a spouse annuity effective 31 January 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) AR20140014968
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ABCMR Record of Proceedings (cont) AR20140014968
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