IN THE CASE OF:
BOARD DATE: 23 December 2008
DOCKET NUMBER: AR20080011926
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 reconsideration of an earlier request that the military records of her former spouse, a deceased former service member (FSM), be corrected to show she is the beneficiary for all Survivor Benefit Plan (SBP) annuities.
2. The applicant states, in effect, that she feels all the aspects of her difficult situation were not previously considered by the Board. She points out that she was married to the FSM for 25 years and that after their marriage ended in divorce he continued to generously support her and their son. She claims that since the FSM continued to provide support for the family and they enjoyed a very amicable relationship, her attorney did not feel that she needed to pursue a formal community property settlement. That is the reason she did not file a formal community property agreement. She states that the FSM was a victim of a premature and untimely death at the age of 59, that he was still serving on active duty with no immediate plans for retirement, and that is why he did not initiate any action to elect SBP for her.
3. The applicant indicates that a Casualty Assistance Officer recommended that she obtain a court order to amend her estate proceedings to show she was entitled to the SBP annuity and that this process proved to be lengthy as it took 1 year to obtain the motion to re-open. She points out that she worked diligently over the past few years to establish her entitlement to the SBP annuity despite many difficulties and obstacles that occurred in her life.
4. The applicant provides letters, dated 7 October 2008 and 24 July 2008, from a Member of Congress; a personal statement, dated 25 July 2008; a letter, dated 4 August 2008, from another Member of Congress; a divorce decree; and a court order/motion to reopen succession.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070004649, on 25 September 2007.
2. After having had prior service, the FSM accepted appointment in the Army National Guard as a commissioned officer. He and the applicant married on 11 March 1970. He entered active duty on 18 April 1987.
3. On 4 December 1995, the FSM and the applicant divorced. The divorce decree does not mention the SBP.
4. The FSM's notification of eligibility for retired pay is dated 9 December 1999.
5. On 17 June 2002, while still on active duty, the FSM died. His death was determined to be in the line of duty.
6. On 10 January 2006, the 19th Judicial District Court amended the divorce decree to award the applicant the SBP.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or had not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The original divorce decree did not award the SBP to the applicant.
2. It is acknowledged that in 2006 a probate court, upon petition by the applicant's son as administrator of his father's estate, attempted to create a property interest in the SBP and pass that interest to the applicant. However, that court's action is without effect. To the extent the applicant's former spouse ever had an interest to pass that property interest died when he died without having designated a beneficiary.
3. Regrettably, 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 to amend the decision of the ABCMR set forth in Docket Number AR20070004649, dated 25 September 2007.
_________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) AR20080011926
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ABCMR Record of Proceedings (cont) AR20080011926
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