BOARD DATE: 17 March 2011
DOCKET NUMBER: AR20110001099
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, correction of the Survivor Benefit Plan (SBP) election of her ex-spouse, a former service member (FSM), to show he changed his election to former spouse coverage.
2. She states, in effect, at the time of the FSM's out-processing she did not receive counsel or a briefing concerning SBP. She further states that as a result the FSM defaulted his full SBP coverage for spouse. She continues that the FSM's records are in error because SBP coverage was not included in their divorce decree. Her attorney did not have much information at the time and the FSM did not appear at the hearing due to medical problems.
3. She provides:
* a copy of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a State of New Jersey Certificate of Marriage
* a Superior Court of Fulton County, State of Georgia, Final Judgment and Decree
CONSIDERATION OF EVIDENCE:
1. The FSM married the applicant on 1 October 1983. He enlisted in the Regular Army on 22 May 1985.
2. Section IX (Survivor Benefit Plan Election) of the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 15 July 2005, shows he elected spouse coverage, full base amount.
3. On 3 August 2005, the FSM was permanently retired by reason of physical disability in the rank/grade of staff sergeant (SSG)/E-6.
4. On 21 August 2007, the applicant divorced the FSM. The final judgment and decree of divorce states, in pertinent part, that "The plaintiff [applicant] is awarded one half of the defendant's [FSM] Retired pay from the US Army. The plaintiff is awarded her military Identification Card, medical benefits from the US Army, and commissary and exchange benefits."
5. The FSMs current marital status is unknown.
6. 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. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.
7. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
8. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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. Evidence of record shows the FSM elected spouse coverage, full base amount prior to being permanently retired. However, once the applicant and the FSM were divorced on 21 August 2007, she was no longer his spouse and no longer an eligible SBP beneficiary. Since the divorce decree did not provide for SBP coverage, such a change in SBP coverage would have had to have been a strictly voluntary action on the part of the FSM. There is no evidence such a change was made.
2. Regrettably, there is insufficient evidence that would warrant granting the applicants request at this time.
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) AR20110001099
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ABCMR Record of Proceedings (cont) AR20110001099
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