BOARD DATE: 15 September 2015
DOCKET NUMBER: AR20150001139
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 spouse, a former service member (FSM), to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity.
2. The applicant states she and the FSM were married from 1963 to 1982. After a period of divorce, they remarried in 2008 and remained married until his death in 2014. She is the only former spouse of the FSM. She was both the spouse and the former spouse and the denial of the SBP annuity is a clear injustice.
3. The applicant provides
* letter from the Defense Finance and Accounting Service (DFAS)
* Her letter to DFAS
* 1963 marriage certificate
* 1982 divorce decree
* 2008 marriage certificate
* FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. Following prior active service in the U. S. Air Force, the FSM enlisted in the Oklahoma Army National Guard (OKARNG) on 23 January 1984.
2. He and Sandra, the applicant, were married on 23 November 1963 and they divorced on 2 July 1982.
2. The FSM served through multiple reenlistments or extensions and he attained the rank/grade of staff sergeant (SSG)/E-6.
3. In connection with his upcoming retirement, the FSM completed a DA Form 2656 (Data for Payment of Retired Army Personnel), dated 3 February 2000. In Item 13 he listed Sandra as his "Former Spouse." He elected spouse only SBP coverage at the full gross pay amount. Item 23 (Date of Marriage) and item 24 (Place of Marriage both show "NA."
4. A DD Form 1883 (SBP Election Certificate), dated 3 February 2000, shows in:
a. item 6 (Are you Married): "No"
b. Item 8 (Check one of the following to indicate the type of coverage you desire): He checked Spouse only and wrote in "(Former Spouse).
c. Item 9 He indicated he wanted full coverage under Option C (Immediate Coverage).
d. Item 10 (Name of Spouse) he entered Sandra's name and indicated (Former Spouse).
5. An NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged effective 31 March 2000 due to attaining maximum allowable age.
6. Orders 81-12, OKARNG, dated 21 March 2000, announced his was to be discharged from the Army National Guard and as a Reserve of the Army effective 31 March 2000.
7. He and Sandra remarried on 9 April 2008.
8. The FSM died on 7 July 2014. His death certificate shows he was married to the applicant at the time of death.
9. An email from the Army Retirement Services Office shows the FSM was paying SBP premiums for former spouse until 1 July 14.
10. On 23 December 2014, DFAS officials notified the applicant that she was not entitled to an annuity as a spouse. A review of the FSM's records indicated the FSM elected former spouse coverage, naming the applicant as the beneficiary upon his retirement. The FSM had the option to change his SBP election from former spouse to spouse. Once he remarried he ceased to have former spouse coverage under SBP.
11. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.
12. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.
DISCUSSION AND CONCLUSIONS:
1. The applicant and the FSM were married on 23 November 1963 and they divorced on 2 July 1982. He retired on 31 March 2000. Prior to his retirement, the FSM elected to participate in the SBP with spouse only full coverage. He indicated the beneficiary was his former spouse.
2. He and the applicant were remarried on 9 April 2008. However, there is no evidence he notified DFAS of his remarriage or that he requested a change to his SBP coverage from "former spouse to "spouse" coverage. SBP elections are made by category, not by name.
3. He paid former spouse SBP premiums until 1 July 2014. He died on 7 July 2014.
4. Once the FSM and applicant were married in 2008, she was no longer his former spouse and no longer an eligible SBP beneficiary. A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant within 1 year of their re-marriage, which the evidence of record shows he did not make.
5. Nevertheless, there is no evidence the FSM was remarried to any other individual. Additionally, he continued to pay SBP premiums until his death. Given his remarriage to the applicant and continuation of SBP premium payments through the date of death, it is clear he intended to provide an annuity for the applicant.
6. Therefore, his records should be corrected as recommended below.
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 FSM made a voluntary change in election from "former spouse" coverage to "spouse" coverage on 9 April 2008 and that the former spouse (the applicant) concurred with his election;
b. showing his request was received and processed by the appropriate office in a timely manner; and
c. paying the applicant the SBP annuity retroactive to 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) AR20130022330
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20150001139
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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