RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 April 2006
DOCKET NUMBER: AR20050008741
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. Richard T. Dunbar | |Chairperson |
| |Mr. Patrick H. McGann | |Member |
| |Mr. David K. Haasenritter | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that the records of her deceased former spouse,
a former service member (FSM), be corrected to show he changed his Survivor
Benefit Plan (SBP) coverage from spouse to former spouse.
2. The applicant states that, when she and the FSM first discussed plans
to divorce, he assured her she would always be financially secure. When he
became ill, he repeatedly told her she would not have anything to worry
about regarding finances. He paid into the SBP until he passed away. They
were divorced in Germany and the German court was not able to make
decisions concerning financial matters covered by American law.
3. The applicant provides the divorce decree and a translation of the
divorce decree and proceedings; a DD Form 2064 (Certificate of Death
(Overseas)); emails dated 30 June 2003 and 7 July 2003; and the FSM's
Retiree Account Statement effective date 30 April 2001.
CONSIDERATION OF EVIDENCE:
1. The FSM and the applicant married on 27 April 1973. After having had
prior service, the FSM enlisted in the Regular Army on 4 January 1977. He
retired on 1 February 1993.
2. The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel) is
not available; however, records at the Defense Finance and Accounting
Service (DFAS) show he enrolled in the SBP for spouse and children
coverage.
3. The FSM and the applicant divorced on 17 March 2001 in Germany. The
translation of the divorce decree and proceedings indicates the SBP was not
mentioned.
4. The FSM died on 28 February 2002. His son was listed as the next of
kin on the DD Form 2064.
5. Records at DFAS show the FSM paid SBP premiums until he died and no one
is getting the annuity.
6. 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.
7. 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.
8. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage (without the member’s agreement) in those cases where
the member was participating in the SBP or was still on active duty and had
not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
Although the SBP is not mentioned in the divorce decree (a German court
could not have awarded it to the applicant), the evidence of record shows
the FSM continued to pay SBP premiums until his death and shows he did not
remarry. It is reasonable to presume his continuing to pay SBP premiums
signaled his intent to provide the SBP for the applicant.
BOARD VOTE:
__rtd___ __phm___ __dkh___ 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 that the FSM made a written request to change his SBP
coverage to former spouse and children coverage on 1 April 2001 and that
his request was received by the appropriate office and processed in a
timely manner; and
b. paying to the applicant the SBP annuity retroactive to the date of
the FSM's death.
__Richard T. Dunbar___
CHAIRPERSON
INDEX
|CASE ID |AR20050008741 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060413 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |137.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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