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 during an Open Enrollment period after his retirement.  He continued to pay premiums, even after their divorce, until his death.  He told her on numerous occasions that she was the beneficiary of his SBP and that she need not worry about money when he died.

3.  The FSM’s military records show he was born on 11 May 1916.  He and the applicant married on 7 July 1940.  He initially entered on active duty with the Army National Guard in 1941 and retired from the Regular Army on 31 March, 1961, in grade O-5, after 20 years of creditable active federal service.

4.  On 13 October 1981, during an Open Enrollment period, the FSM elected spouse only SBP coverage, full base amount.

5.  On 27 August 1989, the FSM and the applicant divorced.  The divorce decree made no mention of SBP disposition.

6.  On 3 April 1997, the FSM provided a letter to the Defense Finance and Accounting Center - Cleveland (DFAS-CL) that he wanted his records corrected to show the applicant was his SBP beneficiary.  It fell outside the one-year window to change his election, so no action was taken on it.  However, it also did not stop the payment of his premiums.

7.  The FSM died on 11 May 1997.

8  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.  

9.  Public Law 97035, dated 13 August 1981, established an open enrollment period (1 October 1981 - 30 September 1982) for service members who had retired prior to 13 August 1981 and had declined or elected less than full SBP coverage.

10  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

12.  Phone conversation with DFAS-CL on 27 August 1998 shows that the FSM did continue to pay SBP premiums from the date of his divorce until his death.  That office has no evidence to show the FSM ever remarried.

13.  The applicant is 81 years old and in the interest of time it was decided not to request an advisory opinion.  However, in previous recent cases, the Army Retirement Services Office has recommended approval when the FSM had continued to pay SBP premiums after divorce.  The fact the FSM did continue to pay the premiums was noted as evidence of his intent for his former spouse to be covered in SBP.  

CONCLUSIONS:  

1.  The evidence of record shows the FSM elected “spouse only” SBP coverage during an Open Enrollment period after his retirement.  After his divorce on       27 August 1989, premiums continued to be deducted from his pay for coverage of his then ex-spouse, thus leading him to believe that her coverage continued.

2.  Statements the FSM made to the applicant led her to believe his intention had always been to provide for her after his death, to include keeping her as his SBP beneficiary.  He did provide a letter dated 3 April 1997 to DFAS-CL stating that intention.

3.  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     27 August 1989, the date of the divorce.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 11 July 1997, the date of his death.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                    			                                                     
                           			CHAIRPERSON