RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 11 August 2005
DOCKET NUMBER: AR20040009519
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Ms. Beverly A. Young | |Analyst |
The following members, a quorum, were present:
| |Mr. John Slone | |Chairperson |
| |Ms. Deborah Jacobs | |Member |
| |Mr. Michael Flynn | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant, the former spouse, requests, in effect, the records of
her former husband, a former service member (FSM), be corrected to show he
elected to participate in the Survivor Benefit Plan (SBP) for former spouse
coverage.
2. The applicant states, in effect, she and the FSM were legally separated
in August 2002 and the divorce was finalized in August 2003. In the
divorce decree, the FSM agreed to retain her name as beneficiary of any and
all survivor benefits with regard to his Army Service. She fully believed
he had retained the SBP option at his exit interview upon retirement. She
made inquiries regarding the survivor benefits on 4 October 2004 to see if
she was listed as his beneficiary. She learned that she was not listed to
receive any benefits other than 41 percent of his retirement pay.
3. The applicant provides her letter dated 28 October 2004, a letter from
the applicant's attorney dated 28 October 2004 and a copy of her divorce
decree.
CONSIDERATION OF EVIDENCE:
1. The FSM was appointed a commissioned officer in the Regular Army on
6 June 1979. He married the applicant on 19 March 1983.
2. The FSM retired from the Regular Army on 1 July 2000. He completed a
DD Form 2656 (Data for Payment of Retired Personnel) on 28 March 2000 and
elected not to participate in the SBP. The applicant concurred with the
FSM's decision to decline SBP and signed the form on 28 March 2000.
3. The FSM and the applicant were divorced on 7 August 2003. The
Separation Agreement and Property Settlement states in part "The wife shall
receive forty-one percent (41%) of the husband's military retirement funds
or military income on a monthly basis (which is currently $1170.14) and
shall be entitled to any and all costs of living increases in the future
for said retirement. The husband hereby elects and agrees that he shall
henceforth designate the wife as a 'Spouse or Former Spouse' for any and
all purposes concerning his military retirement benefits (SBP/SSBP etc.)"
4. Public Law 92-425, the SBP, enacted 21 September 1972, provided
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.
5. Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), dated 8 September 1982, established SBP coverage for former
spouses of retiring members.
6. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
7. Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage (without the member's agreement) in those cases where
the member was participating in the SBP or was still on active duty and had
not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The FSM retired on 1 July 2000.
2. At the time of his retirement, the FSM elected not to participate in
the SBP and the applicant concurred with his decision.
3. The FSM and the applicant divorced on 7 August 2003. Since the FSM did
not enroll in the SBP at the time of his retirement, the court was not
permitted to order SBP coverage for the applicant. The applicant is not an
eligible beneficiary for the SBP.
4. In view of the foregoing, there is no basis for granting the
applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
JS______ DJ______ MF______ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
John Slone____________
CHAIRPERSON
INDEX
|CASE ID |AR20040009519 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20050811 |
|TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
|DATE OF DISCHARGE |YYYYMMDD |
|DISCHARGE AUTHORITY |AR . . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |137.0000 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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