IN THE CASE OF:
BOARD DATE: 13 April 2010
DOCKET NUMBER: AR20090014662
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, in effect, that she never received survivor benefits or had access to military medical benefits for which she was entitled. She contends that SBP premiums were paid by the FSM and yet, as his "widow," she never received any payments.
3. The applicant provides the FSM's DD Form 214 (Report of Transfer or Discharge); his death certificate; their marriage license; their divorce decree; a marital settlement agreement; a letter, dated 25 August 1998, from her lawyer to the Defense Finance and Accounting Service (DFAS); a court document, dated
9 July 1996, to DFAS; a letter, dated 3 May 1999, from her lawyer to the Department of Veterans Affairs; and two letters from a doctor and neighbors regarding the FSM's mental state in support of her 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 applicants 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 applicants 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 21 August 1928. He enlisted in the Regular Army on
5 December 1952 and remained on active duty through continuous reenlistments.
3. The FSMs DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 26 July 1973, shows he was married and he elected not to enroll in the SBP. Section II (Marital, Dependency, and Election Status) on this form states, in pertinent part, "IMPORTANT: The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully."
4. The FSM retired on 31 August 1973 in the rank of staff sergeant.
5. The FSM married the applicant on 14 September 1974.
6. The FSM and the applicant divorced on 29 November 1995. The divorce decree and accompanying settlement agreement does not award the applicant SBP.
7. On 29 June 1998, the FSM died. His death certificate shows he was divorced.
8. Records at DFAS show the FSM did make an SBP election for spouse coverage at retirement (1973). He later divorced that woman, remarried (the applicant) and divorced again. The FSM stopped making SBP payments when he divorced the applicant.
9. 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.
10. 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.
11. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
12. 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.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends that she was the FSM's widow, evidence of record shows they divorced on 29 November 1995. The FSM died on 29 June 1998 and his death certificate shows he was divorced.
2. There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage. Further, the applicant was not awarded SBP upon their divorce. The FSM stopped paying SBP premiums after their divorce because he was under no legal obligation to do so. 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 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) AR20090014662
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