IN THE CASE OF:
BOARD DATE: 17 September 2015
DOCKET NUMBER: AR20140020668
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) election to former spouse coverage.
2. The applicant states:
* the court ordered the FSM to provide SBP to her
* he paid SBP premiums for 30 years
* the Defense Finance and Accounting Service (DFAS) says she is not eligible for SBP
* DFAS claims a certain form was not completed when they divorced
* the FSM had been retired for 14 years when they divorced and he furnished the divorce papers to DFAS
* he was never notified that anything else was needed
* DFAS kept deducting SBP premiums
* the FSM passed away on 15 July 2014
* they married in January 1965 and divorced in May 1998
* she was receiving a portion of his retired pay
3. The applicant provides:
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* marriage certificate
* divorce decree
* pay statement
* Retiree Account Statement, dated 31 December 2013
* FSM's death certificate
* note from FSM, dated 14 July 1998, confirming applicant was listed as his SBP beneficiary
* DFAS denial letter, dated 12 November 2014
CONSIDERATION OF EVIDENCE:
1. The FSM entered active duty on 8 August 1961.
2. He married the applicant in January 1965.
3. His records contain a DD Form 4240 (Data for Payment of Retired Army Personnel), dated 18 January 1984, that shows he elected spouse only SBP coverage, full base amount.
4. He retired on 24 January 1984 in the rank of major due to permanent physical disability.
5. He and the applicant divorced in May 1998. Their divorce decree 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 15 July 2014. His death certificate shows his marital status as divorced (not remarried).
8. The applicant provided a copy of the FSM's Retiree Account Statement, dated 31 December 2013, 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 a change to 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 June 1998 and the request was accepted and processed by the appropriate office in a timely manner; and
b. paying the applicant the SBP annuity effective 16 July 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) AR20140020668
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ABCMR Record of Proceedings (cont) AR20140020668
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