2.  The applicant requests that she be granted a Survivor Benefit Plan (SBP) annuity.  Her deceased husband, a former service member (FSM), had elected “spouse only” coverage after his retirement.  He continued to pay premiums, even after their divorce, until his death.

3.  The FSM’s military records show he was born on 8 May 1935.  He enlisted in the Regular Army on 9 May 1952.  He married the applicant on 6 June 1955.  He retired on 31 May 1972, in pay grade E-8, after completing 20 years of creditable active service.  

4.  The FSM enrolled in the SBP effective 1 March 1973 for spouse only coverage during the Plan’s initial Open Enrollment period.

5.  On 28 March 1985, the FSM and the applicant divorced.  Evidence in the application shows that the FSM remarried sometime after November 1993.  He died on 11 July 1994.  He was married to his second spouse for approximately eight months.

6.  The FSM continued to pay SBP premiums up until the date of his death.  Three of his children plus a son-in-law have provided statements showing that the FSM always indicated to them he intended to take care of his first wife, to include specifically intending her to receive his SBP annuity.  

7.  Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An Open Enrollment period was established to provide those individuals who had retired prior to this date an opportunity to elect SBP.

8.  Public Law 94-496, dated 14 October 1976, shortened the marriage time requirement for those retirees who were not married at the time of retirement but subsequently married from two years to one year before the new spouse would be eligible for SBP benefits.  (Phone conversation with the Army Retirement Services Office verifies that this requirement holds for any remarriage, whether or not the retiree had been married at the time of his retirement.)

9.  Public Law 99-145, which permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions, was not passed until 8 November 1985.

10.  Public Law 99-661, which permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement, was not passed until 14 November 1986.

11.  In the processing of this case, an advisory opinion was requested from the Headquarters, Army Retirement Services Office.  That office was unable to render an opinion based on inadequate available information.  It was able to ascertain that the SBP was in effect, for a beneficiary with a date of birth of        22 June 1935, on the FSM’s date of death.  (A DD Form 398, Statement of Personal History, in the FSM’s records shows the applicant’s date of birth as    22 June 1936, possibly a typographical error or the FSM was not sure of the year when he completed the form.)  That office noted that three critical pieces of information are needed to determine a proper outcome of this case:  Did the FSM notify the Defense Finance and Accounting Service (DFAS) of his divorce; did he attempt to make the election change voluntarily; and did he attempt to enroll or decline enrollment for his second spouse?  However, they noted the goal in this case was to determine the FSM’s intent.  One key to his intent is the statements from his three children and son-in-law.

12.  Phone conversations with DFAS Denver and DFAS Cleveland on 26 August 1998 has determined that the FSM’s records are still unavailable.  As such, there is no evidence in those records to show whether the FSM attempted to notify them of his divorce or make an election change or whether he made an attempt to enroll or decline enrollment for his second spouse.  Premiums were paid continuously from the date of his divorce until the date of his death.  No one is currently receiving his SBP annuity.

CONCLUSIONS:  

1.  The evidence of record shows the FSM elected spouse-only SBP coverage during the first Open Enrollment period after his retirement.  After his divorce on 28 March 1985, premiums continued to be deducted from his pay for coverage of his then ex-spouse, thus leading him to believe that her coverage continued, until his death on 11 July 1994.

2.  There is no evidence available to show the FSM intended to enroll his second spouse in the SBP in place of his first spouse.  Since he had been married to her for less than one year, she was not yet eligible to actually be enrolled.

3.  Statements from his three children and son-in-law attest to the FSM’s intent to provide an SBP annuity for his first spouse.  The FSM often mentioned to them that he was giving his survivor’s benefits to his first wife.
4.  In view of the foregoing, it would be in the interest of justice to correct the records as recommended below.

RECOMMENDATION  

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM applied for “former spouse” coverage on       9 November 1985.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 11 July 1994, the date of his death.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                    			                                                     
                           			CHAIRPERSON