BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110004377
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, the former spouse of a deceased former service member (FSM), requests designation as the Survivor Benefit Plan (SBP) beneficiary.
2. The applicant states she does not believe the FSM intended to deprive her of the SBP benefit.
3. The applicant provides copies of the FSM's 2005 death certificate, their marriage certificate, her daughter's birth certificate, and other documents, including:
* statements from their children and a granddaughter
* the FSM's DD Form 214 (Report of Separation from Active Duty)
* their divorce decree
* a letter from the Defense Finance and Accounting Service (DFAS)
* approximately 25 photographs of the FSM, family, and friends
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 deceased FSM retired as a lieutenant colonel in January 1978. He apparently elected spouse SBP coverage at that time. He and the applicant divorced in June 1978. The June 1978 divorce decree dissolving the marriage makes no mention of the SBP.
3. The FSM died on 19 July 2005. The death certificate shows he was married at the time of his death (not to the applicant).
4. 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name.
5. 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. Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:
a. if the service member voluntarily elects to provide a former spouse annuity;
b. the election is made in order to comply with a court order; or
c. the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.
6. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.
7. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The FSM designated his then wife as the beneficiary of his military SBP. After his retirement, the parties divorced and the divorce decree was silent as to SBP. The FSM did not voluntarily change his beneficiary to his former spouse after their divorce. The FSM later remarried and his spouse at the time of his death is receiving those benefits as SBP beneficiary designations are by category, not by name.
2. There is no evidence to show the FSM elected to provide SBP coverage for his former spouse. At the time of their divorce, former spouse coverage was not authorized. It appears his widow may be the legal beneficiary of his SBP election.
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 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) AR20110004377
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ABCMR Record of Proceedings (cont) AR20110004377
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