IN THE CASE OF:
BOARD DATE: 19 October 2010
DOCKET NUMBER: AR20100008777
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 reflect her entitlement to a Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that she was married to the FSM from
2 August 1977 through 16 April 1992. She further states, upon their divorce, they agreed he would keep the house and cars and subsequently continue to provide SBP coverage. Upon notification of his death, she contacted the Defense Finance Agency (DFAS) and was informed that he never added her name.
3. The applicant provided the following documents:
* their marriage certificate
* copy of their divorce decree
* her current marriage certificate
* her passport
* his Certificate of Release or Discharge from Active Duty (DD Form 214)
* a copy of his Retiree Account Statement
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's record shows he enlisted in the Regular Army on 9 July 1964 at an early 19 years of age. His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman). The highest rank/grade he attained while serving on active duty was sergeant first class SFC/E-7.
3. On 2 August 1977, the applicant and FSM were married.
4. On 23 July 1984, during his retirement processing, the FSM completed a
DA Form 4240 (Data for Payment of Retired Personnel), In this document, he elected a full amount Spouse Only SBP coverage with the applicant being named as the beneficiary as his then spouse.
5. On 16 April 1992, the applicant and FSM were divorced. The divorce decree provided no SBP coverage provisions for the applicant in conjunction with the divorce.
6. On 26 April 1992, the applicant was remarried.
7. On 27 December 2009, the FSM died. The death certificate shows the FSM had remarried and had a spouse other than the applicant at the time of his death.
8. Public Law 92-425, 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.
9. 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. The applicant's contention that she is entitled to receive SBP benefits based on the death of her husband, a FSM, was carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record shows that when the FSM retired in 1984, he elected to participate in the SBP for spouse coverage. After retirement, in April 1992, he divorced. There is no evidence he voluntarily provided his former spouse SBP and the divorce decree did not award her SBP. Further, it appears the applicants former spouse remarried making his widow the legal beneficiary of his SBP annuity.
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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