IN THE CASE OF:	

		BOARD DATE:	       27 AUGUST 2009

		DOCKET NUMBER:  AR20080015596 


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 show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states that she was married to the FSM for 26 years and the injustice occurred when they were divorced.  She begins by stating that he paid the SBP premiums for 10 years until their divorce and that at the time of their divorce, their lawyers and she agreed that her pension rights would cease upon the FSM's death if he provided a $50,000 life insurance policy for her.  She also states that the FSM had the policy for some time and he moved out of the State and she could not locate him.  When he passed away on 24 July 2000, he did not have the life insurance policy for her and he did not leave an estate from which she could collect the money.  She continues by stating that she should be entitled, as a minimum, to benefits for the 10 years he paid the premiums because she was with him for his entire 20 year career and raised two children alone while he was in Korea and Vietnam.

3.  The applicant provides a two-page handwritten letter explaining her application, a copy of a Judgment of Divorce Nisi and a copy of 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 FSM was commissioned as a United States Army Reserve second lieutenant  on 8 June 1955 and entered active duty on 23 August 1955.  He remained on active duty and was promoted to the rank of lieutenant colonel (LTC) on 22 July 1969.

3.  On 1 August 1975, the FSM made his SBP election for spouse only coverage at a reduced base amount of $700.00.  

4.  On 31 August 1975, the FSM was honorably released from active duty at Fort Devens, Massachusetts and was transferred to the Retired List effective 1 September 1975.  He had served 20 years and 8 days of active duty.

5.  On 8 September 1975, a letter was dispatched from the Acting Assistant Adjutant General at Fort Devens which informed the applicant that the FSM had elected a reduced amount of SBP and that her annuity would be in the amount of $385.00 per month in the event of the FSM's death.

6.  On 10 June 1985, a Judgment of Divorce Nisi was issued in the Norfolk Division of the Probate and Family Court in the Commonwealth of Massachusetts granting a divorce between the applicant and the FSM in 90 days.  There is no mention of the FSM's participation in or the applicant's entitlement to SBP benefits mentioned in the documents provided by the applicant with her application.

7.  The FSM died on 24 July 2000 at the age of 66 in West Palm Beach, Florida.  His death certificate indicates that he was divorced at the time of his death.

8.  In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio regarding the FSM SBP account.  Officials at DFAS Cleveland indicate that the FSM was not paying SBP premiums at the time of his death and that there was no indication in the current records as to when he terminated/suspended payments.
9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

10.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

11.  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.

12.  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.  The applicant’s contentions were noted.  However, SBP elections are made by category, not by name.  As long as she was the FSM’s wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

2.  There is no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory one-year time limit.  There is also no evidence that the FSM was directed to provide the applicant former spouse coverage under the USFSPA.

3.  By the applicant's own admission, she gave up her right to her SBP entitlements in return for a $50,000 life insurance policy on the FSM's life, which apparently the FSM did not keep in force.  However, the fact that the FSM decided to allow the policy to lapse does not constitute an error or injustice on the part of the Department.

4.  The fact that the FSM paid SBP premiums for 10 years also does not constitute an error or injustice because he was paying for coverage on a monthly basis.  SBP is simply an insurance program that protects an income during the period the premiums are paid to ensure that future benefits will be paid to the beneficiary.  Once the premiums are stopped, the coverage stops.  Accordingly, the applicant was protected during the 10 years of her marriage to the FSM while under the SBP. 

5.  While it is indeed unfortunate that the applicant gave up her right to coverage under the SBP by not requiring the FSM to cover her as a former spouse as part of their divorce settlement, once she did so, she was no longer a beneficiary and by virtue of the fact that the FSM stopped paying his premiums, there was no longer any coverage under that program.  Regrettably, there appears to be insufficient evidence on which to grant the relief requested.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.




      _______ _   __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)                                         AR20080015596





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ABCMR Record of Proceedings (cont)                                         AR20080015596



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