APPLICANT REQUESTS: In effect, correction of the former service members (FSM) military records to show that he elected Reserve Component Survivor Benefit Plan (RCSBP) participation for former spouse.
APPLICANT STATES: In effect, that she was married to the FSM at the time of execution of the designation form.
EVIDENCE OF RECORD: The FSMs military records show:
The FSMs military record shows that he was a member of the United States Army National Guard of Kentucky. On 23 April 1966, the FSM married his first spouse. On 31 July 1984, they legally separated. The applicants military record does not show when they actually divorced. The FSMs record indicates that on 7 September 1984, he married the applicant (the current spouse). However, on 3 December 1984, the FSM misrepresented himself as unmarried and voluntarily elected RCSBP participation for his former spouse Option C, immediate coverage. (The FSM had the option to voluntarily elect former spouse coverage, whether he was married or not).
On 27 May 1993, the FSM was killed. Sometime thereafter, the applicant discovered that a claim to these benefits had already been received and processed by the Defense Finance and Accounting Service (DFAS) and that the former spouse is currently receiving SBP annuities.
On 14 June 1995, the applicant appealed to this Board for correction of the FSMs military records.
Public Law 92-425, 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. The FSM elected SBP participation for his former spouse in 1984.
In processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the SBP Board, in the Office of the Deputy Chief of Staff for Personnel, which recommended denial of the applicants request.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The evidence of record show that on 3 December 1984, the FSM misrepresented himself as unmarried and voluntarily elected SBP participation for his former spouse. Although, at the time of his election he was married to the applicant (the current spouse). The FSM was killed on 27 May 1993 and his former spouse is now receiving SBP annuities.
3. The fact that the applicant (the current spouse) was not informed does not change the authenticity of the FSMs election. By law the FSM can choose his ex-wife as beneficiary, whether married or not, the only matter of contention is the governments non notification of his election to the applicant (the current spouse), which is required by law. The government did not know he was married, and therefore, should not be held liable for not notifying the applicant. The most that the government could have done in this case would have been to informed the applicant (the current spouse) of his election had they known of his marital status.
4. Therefore, in view of the foregoing, there exist no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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