IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080005542 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to continue her as sole beneficiary of his Survivor Benefit Plan (SBP) as former spouse.

2.  The applicant states, in effect, she was married to the FSM for 28 years, during his entire Army career.  She states that at the time of their divorce they were not counseled concerning any additional paperwork that may have been required to continue her as the beneficiary for his SBP.  She further states the FSM's intention to provide her with survivor benefits is shown by his continued  payment of SBP premiums from the date of their divorce up until the date of his death.  

3.  The applicant further states that, as required by Public Law 92-425 of 
21 September 1972, she and the FSM were not informed of the options, effects, or any other requirements to ensure SBP benefits for her at the time of their divorce.

4.  The applicant further states that after she attempted to secure the SBP benefits the FSM paid for and after the death of her second husband, she discovered new legislation that would entitle her to the benefits of the SBP.  She further states that her letter of request to the Defense Finance and Accounting Service (DFAS) went unanswered.


5.  The applicant provides a copy of two marriage certificates, the FSM's 
DD Form 214 (Report of Separation From Active Duty) with an effective date of 
31 May 1976, her divorce decree, two death certificates, a letter from an unknown source concerning new legislation concerning former spouses, her letter to DFAS, two of the FSM's pay statements, her letter to the Chief, Retirement Division, and a letter from her daughter.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 2 February 1952, the applicant and the FSM were married.

3.  On 1 August 1952, the FSM was commissioned a second lieutenant in the U.S. Army Reserve and entered active duty on 1 August 1952.  The FSM continued to serve on active duty until his retirement on 31 May 1976.

4.  Prior to the date of his release from active duty the FSM completed a 
DA Form 4240 (Data for Payment of Retired Army Personnel) on which he elected SBP coverage for spouse only at the reduced amount of $750.00.  The applicant signed this form indicating she had been fully informed and counseled concerning the options available under the SBP and that she understood the decision which had been made by the FSM.

5.  On 31 May 1976, the FSM was released from active duty, having completed 23 years and 10 months of active service, and was placed on the retired list effective 1 June 1976.

6.  On 14 May 1981, the applicant and the FSM were divorced.  The divorce decree does not address survivor benefits.

7.  On 19 July 1981, the applicant married an individual other than the FSM.

8.  On 3 March 1983, the FSM died.

9.  On 14 January 1999, the applicant's second husband died.

10.  A letter, dated May 1989, submitted by the applicant, from an unknown source discusses new legislation concerning former spouse benefits.  According to this letter former spouses who were divorced after 15 November 1982 from members retired before 15 November 1982 may be entitled to a lifetime annuity.  The letter also addresses previous spouse benefits to a former wife or husband divorced after 29 September 1988.

11.  A letter, dated 14 June 1989, to Chief, Retirement Division, submitted by the applicant, is a request by the applicant for former spouse benefits based on the legislation discussed in the above letter.  The applicant did not include a copy of any response she may have received as a result of her inquiry.

12.  A letter, dated 2 February 2006, from the applicant to DFAS requested the applicant receive monthly payments based on the FSM's SBP election at the time of his retirement.  The applicant indicated she has never received a response to this letter.

13.  Two Jumps - Army Retired/Annuitant Pay Statements, dated January 1983 and February 1983, submitted by the applicant show that SBP premiums were deducted from the FSM's retirement pay in the month of January and February 1983.

14.  In a letter, dated 14 February 2008, the applicant's daughter provides essentially the same argument as the applicant as to the reason the applicant should be entitled to an SBP annuity.

15.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  The law further provided that retiring members and spouses were to be informed of SBP options and effects and that premium deductions continued after loss of spouse.

16.  Public Law 94-496, (14 October 1976, but effective 1 October 1976) provided that spouse costs were to be suspended if a marriage ended in death or divorce.


17.  Public Law 97-252 (8 September 1982), under the Uniformed Services Former Spouses’ Protection Act provided for former spouse coverage authorized for retiring members (elections became effective no earlier than 1 February 1983).

18.  Public Law 98-94 (24 September 1983) provided for former spouse coverage 
for members who were retired prior to 8 September 1982 and provided for a 
one-year open enrollment from 24 September 1983 to 23 September 1984.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be changed to show she is entitled to SBP payments as a former spouse based on the FSM's SBP election for spouse coverage.

2.  The applicant contends that she and the FSM were not informed of the options, effects, or any other requirements to ensure she would receive SBP payments.  The DA Form 4240, signed by both the FSM and the applicant at the time of his retirement, shows both parties had been fully informed and counseled concerning the options available under the SBP and that she understood the decision which had been made by the FSM.  There was not then, nor is there now, any requirement for counseling by the service department concerning SBP benefits at the time of a divorce that occurs subsequent to a service member's retirement from the service.  Therefore, the applicant's contention is not considered a mitigating factor in the determination of this case.

3.  The applicant contends the FSM's paying of SBP premiums up until his death showed his intent to provide her with survivor benefits.  At the time of their divorce the law did not provide for former spouse coverage under the SBP.  Public Law 94-496 provided the opportunity for the FSM to suspend SBP premiums based on his divorce.  However, based on his last two pay statements it is apparent that he failed to notify DFAS that he was divorced.

4.  Because the FSM was already retired, there were no provisions in Public Law 97-252 for him to change his SBP election to former spouse.

5.  The provisions for members retired prior to 8 September 1982 to change 
their SBP election to former spouse, Public Law 98-94, were not provided for in the law until 6 months after the FSM's death.

6.  Regrettably, there are no provisions for granting relief in this case as the law did not provide for former spouse coverage under SBP for those who retired prior to 8 September 1982 until after the FSM's death.   
7.  The applicant and the FSM were divorced on 14 May 1981.  The benefits discussed in the letter dated May 1989 concern divorcees who were divorced after 15 November 1982 or after 29 September 1988.  Therefore, the applicant is not eligible for the benefits discussed in this letter.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005542



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ABCMR Record of Proceedings (cont)                                         AR20080005542



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