APPLICANT REQUESTS: Correction of the military records of her late ex-husband, the former service member (FSM) to show that he elected SBP (Survivor Benefit Plan) participation for his former spouse, and information concerning burial benefits.
APPLICANT STATES: In effect, that the FSM had had a stroke shortly after his retirement; that he was angry and blamed her; that he refused to sign any paperwork; that they were divorced in 1983; and that he died in 1995.
EVIDENCE OF RECORD: Incorporated herein by reference are military records which show:
The FSM initially enlisted in the Regular Army on
8 September 1949 and through subsequent reenlistments remained on active duty until his retirement. He was promoted through the ranks to pay grade E-9. On 15 June 1973, the FSM executed a DD Form 1883 (Survivor Benefit Plan Election Certificate). He stated that he was married and had dependent children. He declined to participate in the SBP. Section III of the form (Family Information is blank). The FSM retired on 1 August 1973 with more than 23 years of creditable active service.
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 election made by the soldier is irrevocable.
The FSMs marriage ended in divorce in 1983. 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 the time of retirement.
The FSM died on 15 January 1995.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the SBP Board which advised that the FSM declined to participate in the SBP; that by law the applicant was to be notified of the FSMs decision; that no documentation was found to indicate that notification was provided to her in compliance with the law, and that she might have been eligible for SBP based on an administrative error. There is also no evidence to show that the FSM elected SBP during the open enrollment period conducted from 13 August 1981-30 September 1982. The applicant was divorced in 1983; however, this was before the implementation of the Former Spouse Protection Act in 1986. She would have lost the eligibility to a spousal annuity at the time of the divorce.
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. The evidence of record shows that the FSM declined SBP participation for his spouse. Since no evidence was found to show that the applicant was notified of the FSMs decision as was mandated by law, and had she still been married to the FSM at the time of his death, the applicant might have been eligible for an annuity based on an administrated error.
2. The former spouse protection act which authorized courts to order SBP maintenance for a former spouse was not enacted until 1986. Since the applicant was divorced in 1983, she would have lost eligibility to an annuity as a spouse.
3. Death gratuities come under the jurisdiction of the Department of Veterans Affairs and need to be addressed to that agency.
4. In view of the foregoing, there exists 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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