IN THE CASE OF:	  

		BOARD DATE:	        26 MARCH 2009

		DOCKET NUMBER:  AR20080019421 


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 that he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage. 

2.  The applicant states that the FSM listed her as his beneficiary for SBP benefits and he never changed it because he wanted her taken care of in the event of his death.  She goes on to state that she was married to the FSM for 14 years and although he remarried, he was always there for her and the children.  She continues by stating that the FSM was adamant that she was to remain his beneficiary for his SBP benefits, despite objections from his current spouse; however, he would not change it.  Accordingly, the Board should honor his wishes and provide her with the appropriate SBP annuity.

3.  The applicant provides a two-page explanation of her application, a copy of her divorce decree from the FSM, a copy of a DD Form 2656-7 (Verification For Survivor Annuity),  a copy of the FSM's Last Will and Testament, a copy of the FSM's death certificate, and four letters of support from four of the FSM's daughters and his former brother-in-law.  

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 born on 13 September 1947 and enlisted in the Regular Army on 20 March 1967.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-8 on 19 March 1987.  He married the applicant on 12 May 1980.

3.  On 24 April 1992, while stationed at Fort Dix, New Jersey, he applied for voluntary retirement by reason of length of service, to be effective 31 August 1992.

4.  On 30 July 1992, the FSM completed his SBP Election and opted to elect full coverage for spouse and children.  

5.  His application was approved and he was released from active duty on 31 August 1992 and was placed on the Retired List, effective 1 September 1992.  He had served 25 years, 5 months and 12 days of total active service.  His youngest child's date of birth was in August 1987.

6.  The FSM filed for divorce in Williamsburg, Virginia and on 29 September 1994, the FSM and the applicant were granted a divorce.  The divorce decree contains no provisions regarding the FSM's military pension or SBP benefits.  The FSM was residing in New Jersey at the time of the divorce.

7.  The FSM passed away in New Jersey on 23 October 2007.  The death certificate issued indicates that he was married at the time of his death.

8.  In the processing of this case a staff member contacted officials at the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio to ascertain the status of the FSM's SBP account.  Officials at the DFAS indicated that the FSM's SBP annuity is being paid to his widow.  There was no evidence in his records at the DFAS to show that he ever made a former spouse election and his records contain a copy of his divorce decree and his marriage license.

9.  Public Law 92-425, the Survivor Benefit Plan, 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.  Retiring members and spouses were to be informed of the SBP options and effects.  This law also provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM made an irrevocable election for full spouse and child coverage at the time he completed the election forms just prior to his retirement.

2.  It appears that since there were no provisions contained in the divorce decree directing that the FSM provide SBP benefits to the applicant/former spouse that the FSM elected to retain the SBP benefits for his current spouse/widow.  The law provides that when an election of former spouses coverage is voluntary it must be made within 1 year of a divorce.  

3.  Inasmuch as the FSM's widow (current spouse at the time of his death) is currently receiving the SBP annuity and the applicant has not provided a statement from her that shows she agrees to change the FSM's election, there is insufficient basis to grant the relief requested. 
4.  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.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

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)                                         AR20080019421





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ABCMR Record of Proceedings (cont)                                         AR20080019421



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