IN THE CASE OF:
BOARD DATE: 23 October 2008
DOCKET NUMBER: AR20080006803
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, the divorced widow, requests that the records of the deceased former service member (FSM) be corrected to show that she is the designated beneficiary under the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that, after the FSM's death in 2007, she and their children were going through his effects. They discovered a June 1984 letter from the Army, stating, in effect, that the SBP was being terminated because she was deceased and that the SBP premium would be refunded to the FSM. They have subsequently been unable to re-locate that document. She wants to know how she could have been removed as the SBP beneficiary without proof that she was deceased.
3. The applicant provides copies of the designation of her daughter [who signed the DD Form 149, Application for Correction of Military Records] as attorney in fact for the purposes of this case; a marriage certificate; a sworn statement from her son; the FSM's 16 September 2007 death certificate; and his military retiree identification card.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted the Regular Army in November 1954 and retired in November 1974 as a staff sergeant.
3. Defense Finance and Accounting Service (DFAS) records show that the applicant was the designated SBP beneficiary from the date of the FSM's retirement until their divorce in 1994.
4. There is no provision in the divorce decree reserving the applicant's rights as a former spouse beneficiary under the SBP.
5. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the FSM by virtue of the FSMs residence in the state (other than pursuant to military orders), domicile in the State, or consent.
6. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
7. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person to elect to provide an annuity to a former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce. The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.
8. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. Current law provides spouses involved in divorce proceedings with powerful rights to preserve their SBP beneficiary status.
2. There is no available evidence that the 1994 divorce decree granted or preserved the applicant any rights as an SBP beneficiary.
3. Given that the DFAS and not the Army administers the SBP and that the applicant's status as the SBP beneficiary endured until 1994, it is impossible to even conjecture exactly what the reported June 1984 letter from the Army might have been about.
4. Regrettably, there is insufficient evidence that would warrant granting the relief requested.
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) AR20080008603
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20080006803
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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