IN THE CASE OF:
BOARD DATE: 2 December 2010
DOCKET NUMBER: AR20100013048
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 that she be granted former spouse Survivor Benefit Plan (SBP) benefits from her former husband who is a deceased former service member (FSM).
2. The applicant states, in effect, that she was married to the FSM for over 26 years and had five children when they were divorced in 1974. She should have received his SBP benefits when he died because his next wife did not do anything during his career and did not bear him any children.
3. The applicant provides:
* several letters explaining her application
* a copy of her divorce decree from the FSM
* a copy of the FSM's death certificate
* a copy of correspondence from the Defense Finance and Accounting Service (DFAS) to her Congressional representative
CONSIDERATION OF EVIDENCE:
1. The applicant and the FSM were married in Texas on 14 August 1947.
2. The FSM was commissioned as a Reserve second lieutenant on 13 June 1948 and he entered active duty on 5 September 1950. He continued to serve and was promoted to the rank of lieutenant colonel on 29 June 1966.
3. On 25 June 1964, the FSM made an election under the Retired Serviceman's Family Protection Plan in which he declined the opportunity to receive reduced retired pay in order to provide an annuity for his dependents.
4. On 28 February 1969, the FSM was retired and was transferred to the Retired List effective 1 March 1969. He had served 23 years and 24 days of service. On 21 September 1972, the FSM elected SBP spouse coverage for the applicant.
5. The applicant and the FSM were divorced in Fairfax County, Virginia, on 5 March 1974. The divorce decree is silent as to the division of retired pay or the SBP.
6. On 27 November 1981, the FSM submitted an SBP election change in which he elected to change from no coverage to full spouse coverage. He named his spouse at the time and it was not the applicant's name. He indicated that he married his current spouse on 27 April 1974.
7. The FSM died on 25 October 2009 and his death certificate lists the same spouse's name that is listed as his spouse under the 1981 SBP election.
8. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.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. Election of beneficiaries is made by category only, not by name. Except as provided by law, an election, once made, is irrevocable.
9. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
10. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests, in effect, that the records of her deceased former spouse, a FSM, be corrected to show he changed his category of participation in the SBP from spouse to former spouse coverage.
2. The evidence of record clearly shows the divorce decree between the applicant and the FSM did not contain any provisions directing the FSM to provide SBP benefits to the applicant.
3. The evidence also shows the FSM remarried and designated his new spouse as the beneficiary of his SBP benefits. The election by the FSM at the time appears to have been voluntary on his part and is considered an irrevocable election.
4. Inasmuch as elections are made by category (spouse, former spouse, children, etc.) and since the FSM elected full spouse coverage, his wife at the time of his death is the legal beneficiary of his SBP benefits.
5. While the applicant's position is certainly understandable, the applicant and the FSM were divorced prior to the enactment of Public Law 98-94; therefore, she was no longer an eligible spouse beneficiary under the SBP and is not entitled to receive a monthly former spouse SBP annuity. Regrettably, there is insufficient evidence on which to grant the relief requested.
6. 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.
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) AR20100013048
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100013048
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