ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170013424 APPLICANT REQUESTS: her deceased father’s record be corrected to show former spouse Survivor Benefit Plan (SBP) coverage rather than spouse coverage APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A self-authored statement from applicant’s mother * A Retiree Account Statement (RAS) * Applicant’s record of birth * Applicant’s father’s death certificate * A judgement of divorce * A property settlement agreement FACTS: 1. The applicant states her father’s RAS should be corrected to show former spouse coverage under SBP instead of spouse coverage. After her parent’s divorced, no one told her father to change the SBP coverage from spouse to former spouse. 2. The applicant provides: a. A letter to the Board from her mother, dated 12 June 2017, stating she was the intended SBP beneficiary. When her former husband died and she applied for SBP, she was shocked to learn that because they had divorced, he was required to change the SBP from spouse to former spouse. No one, including his attorney, ever advised him to do this. They married in 1981 and had a daughter (the nominal applicant) in 1986. In 1989 her husband was diagnosed with Multiple Sclerosis. By 1994, he was too ill to work and she stayed home and took care of him. His health continued to decline and by 2012, his illness had progressed to the point that she was no longer able to care for him in their home. They were able to place him in the New Jersey Veterans Home, but the cost was over five thousand dollars per month. She consulted with attorneys and was advised that once her husband’s savings was depleted, she would become financially responsible for all fees. They were advised that divorce was the only solution. So, in 2014 they divorced after thirty-three good years together. Her husband always told her she would receive his pension after he was gone. He appreciated all the sacrifices she made for him and continued to pay for SBP spouse coverage after the divorce. She gave up her career, education, a lifetime of savings, and any chance of a decent pension and future for herself. She dealt with her husband’s declining and terminal health care. She was with him every day to ensure proper care. It took her fifteen years to pay off modifications to their home to accommodate his declining health. She does not regret it and she always loved him. She asks that the Board not penalize her because nobody informed her husband to change the beneficiary category. b. A Retiree Account Statement, with an effective date of 3 December 2016, which shows that applicant’s father continued to pay SBP spouse premiums up until his death over two and one half years after her parent’s divorced. The date of birth of the covered spouse is 10 October 1950, which is her mother’s date of birth. c. A copy of applicant’s birth record certified by the State of New Jersey Office of Registrar of Vital Statistics showing she was born on 4 January 1986. d. A copy of her father’s death certificate showing he died on 22 December 2016. Applicant’s mother is listed as the informant. The death certificate indicates that applicant’s mother and father were still married at his death. e. A “Final Judgment of Divorce”, dated 15 July 2014, dissolving the marriage of applicant’s parents. f. A “Property Settlement Agreement”, dated 15 July 2014, which was incorporated by reference, but not merged, into the judgment noted above. 3. A review of the FSM’s service record shows: a. He enlisted in the United States Army Reserve in December 1952. b. He was issued a “Notification of Eligibility for Retired Pay at Age 60” on 27 January 1976. c. DA Form 4240 (Data for Payment of Retired Army Personnel) shows that on 22 October 1993, in conjunction with his application for non-regular retired pay, applicant’s father elected full spouse coverage under SBP for the benefit of her mother. d. Per DA Form 3713 (Data for Retired Pay), dated 13 June 1994, he was placed on the Retired List in the rank of Chief Warrant Officer Two on 14 April 1994, his 60th birthday. 4. By law, voluntary changes in SBP coverage from spouse to former spouse must be received by the Secretary concerned within one year of divorce. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The FSM and his spouse divorced some period after his retirement. The divorce decree did not require him to elect former spouse SBP coverage. Without a divorce decree requirement to elect former spouse coverage, the FSM’s decision to elect any coverage was optional. There is no evidence he attempted to elect former spouse coverage within one-year of their divorce. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP). It essentially states, in pertinent part, that eligible participants include persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. A standard annuity participant is a person who is entitled to retired pay and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence) not to participate in the Plan before the first day for which he is eligible for that pay. A person who is a participant in the Plan and is providing coverage for a spouse or spouse and child and who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan, may elect to provide an annuity to that former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment. A person who elects to provide an annuity to a former spouse shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth whether the election is being made pursuant to the requirements of a court order or whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as part of, or incident to, a proceeding of divorce, dissolution, or annulment, and (if so) whether such voluntary written agreement has been incorporated in or ratified or approved by, a court order. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013424 3 1