IN THE CASE OF:
BOARD DATE: 24 May 2012
DOCKET NUMBER: AR20110023670
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 reconsideration of her earlier request for correction of the records of her deceased former husband, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse.
2. The applicant states the FSM never intended for her not to receive the SBP. She supported her former husband until he got out of the Army and took care of him when he was in and out of the hospital on many occasions. He had cancer for the last 3 years of his life. She learned her former husband had human immunodeficiency virus from a nurse in the hospital. He knew he had it for over 5 years, but he never told her. Over the last year before he died, he always told her she would be all right because of the SBP.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110004575 on 6 October 2011.
2. The applicant submitted a new argument which was not previously reviewed by the ABCMR; therefore, it is new evidence and as such warrants consideration by the Board.
3. The FSM was born on 22 May 1944.
4. Having prior service from 19 November 1964 to 9 November 1966, the FSM enlisted in the Regular Army on 19 March 1973. He and the applicant were married on 10 April 1981.
5. He served through multiple extensions or reenlistments in a variety of stateside and overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.
6. In anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel) wherein he indicated he was married to the applicant and had dependent children. He elected spouse-only SBP coverage based on the full amount.
7. On 31 December 1991, the FSM was honorably retired and placed on the Retired List in the rank/grade of SFC/E-7 effective 1 January 1992. He was credited with completing over 22 years of honorable active service.
8. On 9 December 2009, the FSM and applicant were divorced. The available divorce document provided by the applicant does not address the SBP. Additionally, the FSM's pay records at the Defense Finance and Accounting Service (DFAS) show he stopped making SBP payments upon his divorce.
9. The FSM died on 24 September 2010. His death certificate shows he was divorced at the time of death.
10. 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 and Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.
11. 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 evidence of record shows the FSM elected to participate in the SBP for spouse coverage at the time of his retirement in December 1991. Years later, in December 2009, he and his spouse were divorced. There is no indication that their divorce decree obligated him to change his SBP from spouse coverage to former spouse coverage.
2. The FSM did not make a former spouse election within 1 year of their divorce.
A change in the SBP beneficiary would have been a strictly voluntary action on the part of the FSM absent a provision in the divorce decree, which the evidence of record shows he did not make.
3. Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. Additionally, the FSM's pay records show he stopped paying SBP premiums after his divorce. Therefore, contrary to the applicant's contention, it appears there was no intent on behalf of the FSM to provide her with the SBP annuity in the event of his death. Regretfully, the applicant is not entitled to the requested relief.
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 to amend the decision of the ABCMR set forth in Docket Number AR20110004575, dated 6 October 2011.
__________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) AR20110023670
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ABCMR Record of Proceedings (cont) AR20110023670
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