IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090004391
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 the deceased former service member (FSM), requests, in effect, correction of the appropriate records to show that the FSM made a timely voluntary former spouse election for Survivor Benefit Plan (SBP) coverage.
2. The applicant states that she and the FSM were married for over 25 years and it is stated that I am still listed as beneficiary of SBP, and would like to see what I need to do to process this and receive benefits.
3. The applicant provides a copy of the FSMs Certificate of Death and a copy of her Marriage Certificate.
CONSIDERATION OF EVIDENCE:
1. On 23 December 1971, FSM accepted an appointed as a Reserve commissioned officer in the rank of second lieutenant (O1). He was ordered to active duty for training on 15 March 1972. He remained on active duty and he accepted an appointment in the Regular Army on 18 May 1972.
2. The applicant and the FSM married on 14 February 1975.
3. The FSM was promoted through the ranks to lieutenant colonel (O5). On 31 July 1992, he was retired for length of service and he was placed on the Retired List on 1 August 1992. He had 20 years, 4 months, and 16 days of net active service.
4. Information obtained from the Defense Finance and Accounting Service (DFAS), Retired Pay Operations, reveals that at the time of his retirement the FSM initially enrolled in the SBP electing the spouse and eligible children coverage. On 21 July 2003, DFAS received a Final Divorce Decree from the FSM dated 9 July 2003, indicating that he and the applicant had divorced. Along with the Final Divorce Decree, he submitted a request that his SBP election be changed from the spouse and children option to the children only option and that he be refunded any premiums that he was due as a result of his new election. On 1 August 2003, the FSMs option was changed per his request and he was issued a refund of overpayment of SBP premiums that had been deducted from his pay. According to officials at DFAS, the FSMs child became of age on 1 July 2007.
5. The FSM died on 25 December 2007.
6. Public Law 92-245, the SBP, enacted 21 September 1972, 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.
7. 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.
8. 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.
9. 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 one year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that the FSMs records should be corrected to show that he made a timely voluntary election for SBP former spouse coverage.
2. Her contentions have been noted. However, there is no evidence to show that it was the FSMs intent to voluntarily maintain his former spouse, the applicant, as his SBP beneficiary nor is there evidence to show that the applicant was awarded former spouse SBP upon divorce.
3. The available records indicate DFAS received a Divorce Decree from the FSM in 2003 showing that he and the applicant had divorced and he also submitted a request that his SBP election be changed from spouse and children to children only. If the FSM had intended for the applicant to be his beneficiary, he would have requested that his SBP election be changed to former spouse and children and he did not. Therefore, it is reasonable to presume that it was not the FSMs desire for the applicant to be his beneficiary in the event of his death.
4. Additionally, the applicant has not provided a Divorce Decree that shows that the FSM was ordered to maintain SBP coverage with her as the beneficiary. In the absence of evidence to the contrary, it must be presumed that she is not entitled to SBP premiums.
5. In order to justify correction of a military record the applicant must show, 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.
6. In view of the foregoing, 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 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.
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