IN THE CASE OF:
BOARD DATE: 6 October 2011
DOCKET NUMBER: AR20110004575
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, 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:
* The records were never changed after the divorce
* She did not even know about the divorce
3. The applicant provides:
* SBP information document
* Marriage license
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the FSM again enlisted in the Regular Army on 19 March 1973. The FSM and the applicant married on 10 April 1981.
2. His DA Form 4240 (Data for Payment of Retired Army Personnel), dated
31 December 1991, shows he enrolled in the SBP for spouse coverage, full base amount.
3. He retired in the rank of sergeant first class on 31 December 1991 after completing over 23 years of active service.
4. He and the applicant divorced on 9 December 2009. The available divorce decree does not award the applicant SBP.
5. He died on 24 September 2010. His death certificate shows he was divorced.
6. Records at the Defense Finance and Accounting Service show there is no eligible beneficiary and the FSM stopped making SBP payments when he divorced the applicant.
7. 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. Elections are made by category, not by name.
8. 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.
9. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
10. 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 1 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 contends she did not know about the divorce and the records were never changed after the divorce.
2. There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage before he died. Further, it does not appear the applicant was 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) AR20110004575
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ABCMR Record of Proceedings (cont) AR20110004575
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