RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060009057 


	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.  


x
	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, in effect, that the records of his deceased former spouse, a former service member (FSM), be corrected to reflect his entitlement to a Survivor Benefit Plan (SBP) annuity.

2.  The applicant requests, in effect, that the FSM's records be corrected to show that he was never divorced from her and that in fact he was married to the FSM until her death.  He further requests that the FSM's records be corrected to show she elected SBP "Spouse" coverage.

3.  The applicant provides the following documents in support of his application: State of Maryland Certificate of Death; Survivor Benefits Plan Overview; 
Self-Authored Statement, dated 6 April 2006; Statement in Support of Claim
(VA Form 21-4138); License and Certificate for Marriage, State of South Carolina; State of Georgia Certificate of Live Birth; Defense Finance and Accounting Service (DFAS) Cleveland Center Letter, dated 20 April 1996; 
DFAS Retired and Annuity Pay Letter, dated 13 July 2005; and State Retirement and Pension System of Maryland Notice.

CONSIDERATION OF EVIDENCE:

1.  On 1 May 1992, the FSM and applicant married while both were serving on active duty in the Army.  The FSM was a captain (CPT) and the applicant was a sergeant first class (SFC).  

2.  In a Veterans Application for Compensation or Pension (VA Form 21-526) that the applicant submitted in 1996, he indicated that he and the FSM were divorced. 

3.  Although there are no divorce documents on file with DFAS, on 3 April 2000, during her retirement processing, the FSM completed a Data for Payment of Retired Army Personnel (DD Form 2656), in which she indicated she was single in Item 14 (Marital Status).  In Item 26 (Beneficiary Category), she elected “Children Only” SBP coverage at the full gross amount without supplemental SBP; listed her children at the time, a son born in 1981 and daughter born in 1993, as the beneficiaries and in Item 22 (Spouse), she again indicated she had no spouse.  


4.   On 20 April 1996, the DFAS Garnishment Operations informed the applicant that a court order for child and/or spousal support had been submitted to them and that in compliance with that order, a deduction of $537.43 per month from his pay had been authorized.  They further stated that payments would continue until a further order of the court regarding the deduction was submitted. 

5.  On 8 April 2005, the FSM died at the age of 43.  At this time, the FSM's daughter became eligible to receive the SBP annuity.  

6.  In the processing of this case, a member of the Board staff coordinated with DFAS, Retired Pay Inquiries Branch, Cleveland, Ohio, and confirmed the FSM elected "Children Only" coverage at the time of her retirement.  

7.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.  The SBP 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.  It stipulated that once an election was made, it is irrevocable except in certain circumstances.  It further stated that if the service member was married at the time of retirement and declined to enroll in SBP coverage for his spouse, then later remarried, he could not enroll the new spouse.  Likewise, if the service member had eligible children and declined to enroll the children at the time of retirement, he may not enroll future children.

8.  Public Law 99-145, effective 1 March 1986, required a spouse written concurrence for a retiring member's election that provided less than maximum spouse coverage.  Concurrence can be waived if it would be otherwise inappropriate to obtain it.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to receive an SBP annuity based on the death of his former spouse, a FSM, was carefully considered.  However, there is insufficient evidence to support his claim that they were continuously married until her death.

2.  The evidence of record confirms the applicant believed he was divorced from the FSM at the time of her retirement, as evidenced by the VA claim the applicant submitted in 1996.


3.  The FSM stated that they were divorced at the time of her retirement processing, when she completed her DD Form 2656, in which she indicated she had no spouse and elected "Children Only" SBP coverage.  As a result, written concurrence from the applicant would not have been required.  Absent sufficient independent evidence that the FSM and the applicant were still married at the time she completed the DD Form 2656 and at her death, her SBP election of "Children Only" remains irrevocable.  

4.  The FSM's daughter remains the valid beneficiary for the SBP annuity in question until she reaches 18 years of age, or 22 years of age if pursuing a full time course of study in high school, college, or a comparable recognized educational institution.  The applicant is advised that if his and the FSM's daughter (Jazmine K.) is currently residing with him, he should contact the DFAS at 1-800-321-1080 to complete the necessary paperwork to ensure his daughter receives the SBP annuity due her.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




____x______
          CHAIRPERSON




INDEX

CASE ID
AR20060009057
SUFFIX

RECON
2007/03/29
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR600-8-24 . . . . .  
DISCHARGE REASON
Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137
2.

3.

4.

5.

6.