IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080009468 


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 former spouse of a retired, deceased former service member (FSM), requests that she be entitled to his Survivor Benefit Plan (SBP) annuity payment from the date of his death on 25 July 1976.

2.  The applicant states, in effect, that she was removed as the SBP annuity recipient when the FSM illegally married another woman before divorcing her.  The FSM brought the applicant back to the U.S. from Japan in the early 1960s after they were married in 1954.  The FSM deserted the applicant and their
3 children in Kentucky and remarried another woman who lived in Texas in 1966. Four years after marrying the second time, the FSM obtained a divorce in Mexico.  The divorce is illegal and the applicant maintains she was still married to the deceased FSM when he died.  The 3 biological children of the FSM suffered severely from not receiving the SBP benefits and medical benefits that they should have been receiving.  She feels entitled to all back payments from the time the FSM died.

3.  The applicant provides a copy of the marriage license to both the applicant and the second wife; a copy of the Mexican divorce decree translated from Spanish; a copy of the FSM's death certificate; a supporting letter from the applicant's daughter; and a marriage and divorce time line chart, in support of her application.




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 evidence of record shows the applicant, whose first name is K___, and the deceased FSM, married on 1 September 1954.

3.  The FSM married E_____ on 1 February 1966.

4.  The FSM retired on 30 April 1971.  The FSM's official record contains a copy of AGPZ Form 977 (Data for Retired Pay); however, block 30 (Retired Servicemen's Family Protection Plan (RSFPP)) only indicates that no DA Form 1041 was on file.  As such, it appears that he did not make an election under the RSFPP.

5.  The FSM obtained a divorce from his first wife, the applicant, on 6 February 1970, in Mexico.  This divorce decree indicates that the applicant and FSM mutually agreed that she would keep the trailer, that she would receive $150.00 per month in the form of child support for their 3 children, and that they had been separated for 6 years. 

6.  The FSM died on 25 July 1976 at the Department of Veterans Affairs (DVA) Hospital, Grand Isle, Nebraska.  On the Notification to U.S. Army Administration Center of Death of Retired Member form, the notification of death was made by E____, his widow.

7.  Per Defense Finance and Accounting Service, Cleveland, E____ is receiving the FSM’s SBP annuity in accordance with the DD Form 1883 on record electing spousal coverage.



8.  Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act).  It covered only persons dependent on the member at the time of his retirement.  Annuity was 1/2, 1/4, or 1/8 of retired pay.  Unless option 4 was elected along with either option
1 (annuity payable to or on behalf of widow), option 2 (annuity payable to or on behalf of surviving child or children), or option 3 (annuity payable to or on behalf of widow and surviving child or children), premiums continued to be paid after the death of the beneficiary.

9.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  

10.  The RSFPP also covered only persons dependent on the member at the time of his retirement.  The provisions of the former option 4 were made automatic with the enactment of Public Law 90-485 on 13 August 1968 for members retired on or after 13 August 1968.  At this time but before 1 September 1969, a retired member who was participating in the RSFPP without inclusion of the former option 4 could have elected to have that option included in his election.  The retired member must have agreed to pay both the total additional amount to cover the option had it been effective when he retired plus the interest which would have accrued on the additional amount up to the effective date of the new option 4.

11.  Public Law 990-485, enacted 13 August 1968, provided that an RSFPP election had to be made before the member completed 19 years of service.  Option 4 was automatic if the member retired on or after 13 August 1968.  Children remained eligible until age 23 if unmarried and full-time students.

12.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP 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 declared a 12-month Open Season for those members who retired prior to enactment of the law.

13.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.


15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

16.  Title 10, U.S. Code, section 1448(a)(6) provides that a person with spouse coverage who remarries may elect not to provide coverage under the SBP for the person's spouse if such an election is made within one year after the person's marriage.  The person's spouse shall be notified of that election.

17.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.  The FSM retired on 30 April 1971.  He married E____ on 1 February 1966.  The FSM died on 25 July 1976.  At the time of his death, E____, was shown as his widow, and she is currently receiving his SBP annuity payment. 

2.  The applicant contends that the divorce obtained by the FSM in Mexico on
6 February 1970 is illegal and/or invalid and that she should be considered his wife for purposes of receiving the SBP annuity.  She asks for a finding that the Mexican divorce is illegal.  The determination on whether the FSM's divorce is legal and/or valid can only be made by a court of law, and not by the ABCMR.  The applicant would need to challenge the legality of the divorce in a court of law. Such a suit would need to enjoin the FSM's widow, E ____, as a party.

3.  At this time, the lawful beneficiary of the FSM's SBP is considered to be E____, his spouse at the time of his death.  The ABCMR cannot take away her right to the SBP without her irrevocable consent or due process of law.  Therefore, as a matter of law, the ABCMR must deny the applicant's request. 




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080009468



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009468



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1