IN THE CASE OF:	 

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006112 


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, correction to the records of her deceased former spouse, a former service member (FSM), to show he elected Survivor Benefit Plan (SBP) former spouse coverage.

2.  The applicant states, in effect, that SBP was given to her daughter and she was also entitled to 50 percent of his pay and SBP.  She also states that she was married to the FSM for 19 years and 7 months.  They divorced in 1983 and he died in 1984.  She further states, in effect, since she was married to her husband for over 10 years she should be entitled to 50 percent of SBP.  

3.  In support of her application, the applicant provides copies of her Marriage Certificate, her final divorce decree, the FSM's FCUSA Form 20-108 (Request for Information and/or Records on Election of Annuity Under Retired Serviceman's Family Protection Plan), her USAFAC Form 20-213 (Arrears of Pay Information), the FSM's Certification of Birth Registration, the FSM's Veteran's Administration Card, and the FSM's Death Certificate.

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.   The applicant provides a copy of her Marriage Certificate that shows she and the FSM were married on 28 February 1964.

3.  The FSM's military records show he was appointed in the United States Army Reserve, as a second lieutenant, effective 6 October 1952, with prior enlisted service.  He entered active duty on 1 November 1966.  

4.  The FSM was separated from active duty, for the purpose of permanent retirement – by reason of physical disability, and transferred to the Retired Reserve, as a captain, effective 26 December 1968.  He was credited with over 24 years of active Federal service.

5.  The applicant also provides a copy of the FSM's FCUSA Form 20-108, dated 11 February 1969, wherein the Retired Pay Division, Finance Center, Indianapolis, Indiana, advised the FSM that he had elected Option I and that option provided for his wife only and did not include his daughter.   

6.  The applicant further provides copy of her final divorce decree that shows her and the FSM were granted a final divorce on 8 September 1983.  The divorce decree does not reference SBP coverage.  The decree does reference and incorporates a property settlement agreement.  However, that document was not included with the applicant's request and is not otherwise contained in the record.

7.  The FSM died on 14 June 1984 and his death certificate reflects that he was divorced at that time.  It is also noted that the applicant was listed as the informant.  

8.  The applicant also provides a copy of her USAFAC Form 20-213, dated 2 August 1984, wherein the Retired Pay Operations, US Army Finance and Accounting Center, Indianapolis, advised her that it had been determined she was eligible to receive 100 percent of unpaid retired pay due the FSM.  She was also advised that the check would include the SBP cost refund for spouse because of the divorce, and that a monthly annuity would be paid to her effective 13 June 1984, provided documentation was provided from school officials when her daughter started school at the beginning of each semester until she reached age 22.

9.  The applicant's daughter reached age 22 on 28 August 1988.

10.  On 22 July 2008, a staff member of the Defense Finance and Accounting Service, verified that former spouse SBP did not start until 24 September 1984 and the cost was at coverage for a natural insurable person.  Then on 1 March 1986, former spouse was changed to former spouse at spouse cost under the Former Spouse Protection Act.  The FSM died before the former spouse SBP coverage was authorized.  The applicant was eligible for the arrears of pay and the arrears of pay were paid to her.

11.  Public Law 87-381, the RSFPP, dated 4 October 1961, established election of an annuity of retired pay to family members of servicemen.

12.  Public Law 92-425, dated 21 September 1972, repealed the RSFPP and established the SBP.

13.  Public Law 94-496, dated 14 October 1976, suspended spouse SBP costs if the marriage ended in death or divorce.  

14.  Public Law 98-94, dated 24 September 1983, established former spouse SBP coverage for retired members.  There was a one-year open enrollment from 24 September 1983 to 23 September 1984, in which a retired member could make a former spouse election.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the FSM and the applicant married on 28 February 1964.  The FSM was released from active duty and transferred to the Retired Reserve on 26 December 1968.  Based on the FCUSA Form, dated 11 February 1969, it appears the FSM elected to provide the applicant, his current spouse at the time, a retired pay annuity.  The FSM and the applicant were divorced on 8 September 1983, prior to the establishment of SBP coverage for a former spouse.

2.  The FSM died on 14 June 1984.  There is no evidence that he attempted or intended prior to his death to establish former spouse coverage.  The evidence provided by the applicant and DFAS shows that the applicant received 100 percent of the FSM's unpaid retired pay and a partial refund of SBP cost for spouse since their marriage ended in divorce.  She was also advised that the FSM's daughter was eligible for a monthly annuity until she reached age 22, provided she submitted documentation to show her enrollment in and attendance at school.

3.  The applicant has not provided sufficient evidence of intent on the part of the FSM to provide her an annuity under the SBP as a "former spouse."  In fact, the law did not provide for this option when they divorced.  The only intent clearly proven is that he elected and intended to provide her an SBP annuity while she was his spouse.  The evidence shows that the applicant did not contest the refund of "spouse SBP costs" premiums that were refunded to her when the Army became aware that they had divorced and she was at the time a "former spouse."  The applicant received the refunded SBP costs upon the FSM's death in 1984.  

4.  The FSM could not have elected former spouse SBP election coverage because he died before this coverage was authorized and an available option.  Therefore, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to be granted SBP former spouse benefits. 

5.  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

____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)                                         AR20080006112



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ABCMR Record of Proceedings (cont)                                         AR20080006112


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