IN THE CASE OF:	

		BOARD DATE:	24 September 2009  

		DOCKET NUMBER:  AR20090005982 


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 
ex-husband, a retired former service member (FSM), be corrected to show he made a voluntary election for former spouse coverage under the Survivor Benefit Plan (SBP) within one year of divorce.
 
2.  The applicant states that the FSM's intention was to keep her (his ex-wife) as his SBP beneficiary.  She states that she has full knowledge that the FSM paid into the SBP, because his intention was never to abandon her and that he always said that she was the beneficiary. 

3.  The applicant provides the FSM’s Certificate of Death; Certificate of Marriage; DA Form 4240 (Data for Payment of Retired Army Personnel); NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 1 April 1985; Commonwealth of Puerto Rico National Guard, memorandum, subject: Statement of Service, dated 11 September 1984; Notification of Eligibility for Retired Pay at Age 60; and an Army Achievement Medal Certificate in support of this 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 FSM was born on 18 August 1929.  His military records show he enlisted in the Puerto Rican National Guard on 8 June 1947. He was inducted into the Army of the United States on 1 March 1951 and was released from active duty on 15 March 1954.  His records show he subsequently served in the Puerto Rican National Guard during various periods of service until his last separation on 1 April 1985 after completing 27 years, 9 months, and 8 days of total service.  
 
3.  The FSM's notification of eligibility for retired pay is dated 28 September 1984.

4.  The applicant's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 11 September 1983 shows he elected spouse and children coverage based on full retired pay with Option C (immediate coverage).    

5.  The FSM's DA Form 4240 shows he was married to the applicant at the time he applied for retired pay.  With this form, he elected to participate in the SBP for spouse coverage at full base amount.  His records show his application for retired pay was approved on 24 November 1989 and he was placed on the retired list in the grade of sergeant E-5 effective 18 August 1989.  

6.  In the processing of the case, the Board staff contacted an official from the U.S. Army Human Resources Command.  The official indicated the database showed "no beneficiary", no deduction for payment of premiums, no indication of court ordered SBP coverage, and no changes to the FSM's SBP election since at least 2002.

7.  The Board staff also contacted an official at the Defense Finance and Accounting Service (DFAS).  The official indicated that a DFAS Personnel Correction Worksheet - Retiree, dated 17 November 1995 shows the FSM requested his SBP election be adjusted following his divorce.  The official provided a copy of this request for an adjustment to the FSM's SBP coverage; a copy of the FSM/applicant's 7 October 1994 divorce decree; and a printout of the FSM's SBP account to the Board for inclusion in these case proceedings.  The divorce decree contains no court ordered requirement for the FSM to continue his SBP election.  The DFAS printout showed a current election of "no beneficiary" effective 7 October 1994.  The DFAS records did not reveal an election to participate in the SBP for former spouse coverage.   
8.  Public Law 92-425, enacted 21 September 1972, 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. 

9.  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.

10.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 or as part of a proceeding of divorce.
	
11.  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 contention of entitlement to former spouse coverage under the SBP was carefully considered.  However, the applicant's argument is not supported by available records.
 
2.  There is no available evidence showing the FSM ever submitted or intended to submit a request for change to DFAS electing former spouse coverage prior to the one year anniversary date following their divorce.  While, he elected spouse coverage when he retired, DFAS records show he requested an adjustment to his SBP following his divorce from the applicant in 1994.  As reflected in available evidence, this request removed the applicant as SBP beneficiary and terminated the deduction of SBP premiums from the FSM's retired pay.

3.  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.

ABCMR Record of Proceedings (cont)                                         AR20090005982



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ABCMR Record of Proceedings (cont)                                         AR20090005982



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