IN THE CASE OF:
BOARD DATE: 1 November 2011
DOCKET NUMBER: AR20110005896
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 entitlement to former spouse Survivor Benefit Plan (SBP) benefits.
2. The applicant states that in 1986 her husband retired from military service and it was her understanding that when he retired because of his length of service and the length of their marriage, she was entitled to SBP coverage unless she executed a written waiver declining or reducing coverage. She claims she never executed a waiver declining coverage.
3. The applicant provides a copy of the FSMs Certificate of Death, their divorce decree, and a court order.
CONSIDERATION OF EVIDENCE:
1. The FSM was serving in the rank/grade of sergeant major (SGM)/E-9 when he retired on 30 June 1986 and placed on the retired list on 1 July 1986. He had completed 31 years, 7 months, and 2 days of creditable active service.
2. Copies of documents obtained from the Defense Finance and Accounting Service (DFAS) show that the FSM declined SBP coverage and provided a Spousal Concurrence Statement signed by the applicant on 28 June 1986. The
concurrence statement was witnessed by an individual in Philadelphia, PA at the same address as listed on the applicants application to the Board.
3. On 27 May 1997, the applicant filed for divorce and on 20 May 1998 the applicant and the FSM were divorced.
4. On 17 September 2010, a court order directed the applicant to make a former spouse election under the SBP and name the applicant as the beneficiary.
5. On 30 September 2010, the applicant made application to the court to amend its previous order by showing that the FSM fraudulently submitted a spouse concurrence statement declining SBP coverage.
6. On 16 December 2010, the FSM passed away in New Jersey at 73 years of age.
7. Public Law 98-94, dated 24 September 1983, established former spouse SBP coverage for retired members.
8. 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. Elections are made by category, not by name.
9. 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.
10. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
11. Title 10, U.S. Code, section 1448 provides, in pertinent part, that effective
1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicants claim that she did not decline SBP coverage is not in doubt, the evidence submitted with her application and the evidence of record fail to support her contention.
2. The documents provided by the DFAS clearly indicate that she declined SBP on 28 June 1986 and she has failed to provide evidence to dispute the signature on that document.
3. It is also noted that at the time of her divorce her counsel could have requested, as part of the discovery process, copies of the FSMs leave and earnings statements to determine his income and would have seen at the time that no deductions were being made for SBP participation.
4. In doing so, the court would not have issued an order directing the FSM to elect a former spouse election under the SBP, which he could not do and appears to be an unenforceable order by the court.
5. In September 2010, the applicant requested the court find that the FSM fraudulently submitted a spouse concurrence statement declining SBP coverage. However, she provides no evidence showing that a court of law found that the statement was fraudulently submitted.
6. Therefore, in the absence of sufficient evidence to establish that she did not in fact sign the spousal concurrence statement declining participation in the SBP, there appears to be no basis to grant her 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) AR20110005896
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ABCMR Record of Proceedings (cont) AR20110005896
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