RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 2 December 2004
DOCKET NUMBER: AR2004104880
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 |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. Raymond J. Wagner | |Chairperson |
| |Mr. Thomas E. O'Shaughnessy | |Member |
| |Ms. Laverne V. Berry | |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 requests that the records of her former spouse, a former
service member (FSM), be corrected to show he changed his Survivor Benefit
Plan (SBP) election to former spouse coverage.
2. The applicant states that the divorce decree ordered the FSM to sign
her up for the SBP. He has never done so in spite of two court orders.
3. The applicant provides a petition to the Superior Court of Arizona,
County of Cochise; the divorce decree; and a letter dated 14 August 2003 to
the Defense Finance and Accounting Service (DFAS).
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the FSM reenlisted in the Regular Army
on 8 November 1967. He and the applicant married on an unknown date.
2. The FSM retired on 1 March 1977. At that time, he completed a DA Form
4240 (Data for Payment of Retired Army Personnel) and indicated he declined
to enroll in the SBP. His spouse, the applicant, was not available for
counseling. She was informed by letter dated 1 September 1976 of the FSM's
decision.
3. The FSM and the applicant divorced on 12 July 1993. The divorce decree
stated in pertinent part that the FSM would enroll the applicant in the
SBP.
4. Per conversation with DFAS – Cleveland Center on 5 May 2004, the FSM
declined to enroll in the SBP when he retired in 1977 and did not enroll
during any subsequent Open Season.
5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents. At the time, spousal
notification only was required if the member declined to participate in the
SBP at the maximum spouse coverage.
6. 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.
7. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
8. 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. It is acknowledged that the divorce decree ordered the FSM to enroll
the applicant in the SBP. However, when the FSM retired he declined to
participate in the SBP. The evidence of record shows he did not enroll in
the SBP during any subsequent Open Season.
2. The SBP is governed by Federal law. Federal law permits divorce
courts, beginning in 1986, to order SBP coverage only in those cases where
the member is participating in the SBP or is still on active duty and has
not yet made an SBP election. The state court had no authority to order
the FSM to enroll in the SBP since he was not already enrolled and he was
no longer on active duty.
3. Regrettably, there is no basis in law for granting the relief requested
by the applicant.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__rjw___ __two___ __lvb___ 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.
__Raymond J. Wagner___
CHAIRPERSON
INDEX
|CASE ID |AR2004104880 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20041202 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |137.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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