IN THE CASE OF:	  

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120000575 


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 widow of a deceased former service member (FSM), requests correction of eligibility status for Survivor Benefit Plan (SBP) benefits and that she be provided an annuity.

2.  She states she and the FSM were incorrectly counseled by a representative at Fort Lee, VA on the SBP.  She thought they had done everything according to the instructions given, but due to inaccurate information it has cost her financially.

3.  The applicant provides:

* a self-authored letter of explanation
* a notarized DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* the FSM's certificate of death
* two marriage licenses
* a death certificate for M.E.T. (FSM's first spouse)
* FSM's Last Will and Testament, dated 18 July 2011
* a general power of attorney, dated 7 July 2011
* a lease agreement, dated 1 October 2011
* a letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay office, dated 15 December 2011



CONSIDERATION OF EVIDENCE:

1.  The FSM's record contains a DD Form 1172 (Application for Uniformed Services Identification and Privilege Card) that shows he and M.E.T. married on 12 June 1948. 

2.  On 31 July 1969, the FSM retired in the rank and pay grade of Chief Warrant Officer Two/W-2, after completing 20 years and 22 days of active military service.  

3.  A Commonwealth of Virginia – Certificate of Death shows M.E.T. passed away on 26 March 1995.  

4.  The first marriage license shows the applicant (B.B., currently known as S.B.) and the FSM were married on 12 October 1995.

5.  A copy of the divorce decree/settlement is not available for the Board's review.  However, in the applicant's letter of explanation she states, in part:

* she and the FSM divorced on 22 December 2009 and he went to live with his daughter in Virginia
* their church did not recognize their divorce
* the FSM and the applicant accepted the divorce as a necessity to allow him to live with his daughter
* in September 2010, she and the FSM rented an apartment together
* the FSM was her sole provider from the date of their marriage in 1995 until his death

6.  She provided a second marriage license which shows the date she and the FSM remarried as 29 June 2011.

7.  The FSM's Last Will and Testament shows, in part, he gave his entire estate to S.B.

8.  His certificate of death shows he expired on 23 November 2011.  

9.  A letter from the DFAS Retired and Annuitant Pay office shows she applied for an SBP annuitant payment from the military retired pay account of the FSM.  Her request for payment was denied.  DFAS stated since she and the FSM were not married at his date of retirement and because they were previously divorced, she did not meet the 1-year marriage requirement.

10.  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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

11.  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: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement may or may not be part of a court order for divorce, dissolution, or annulment (Title 10, U.S.C. 1450 (f) (2) (A) &(C).

12.  Title 10, U. S. Code, section 1447(7) defines “widow” to mean the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least 1 year immediately before his death.

13.  Title 10, U.S. Code, section 1448(a)(6) (Election Out of Plan by Person with Spouse Coverage Who Remarries), applies specifically to service members with existing SBP spouse coverage who later remarry.  The statute requires them to affirmatively opt out of spouse coverage within 1 year of the remarriage if they no longer desire it.  If such a service member does not opt out in writing, resumption of SBP spouse coverage will automatically begin after the first year of the remarriage is completed.

DISCUSSION AND CONCLUSIONS:

1.  It was Congress' intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  

2.  The FSM retired on 31 July 1969, prior to the establishment of the SBP.  He married the applicant in 1995 and remarried her in 2011, just 6 months prior to his death.  Public Law 94-496 required a waiting period of 1 year following post-retirement marriage for entitlement to an SBP annuity.

3.  The applicant did not provide sufficient evidence to show her entitlement to SBP as a former spouse, which would have been granted in a divorce decree or in an SBP Election Form.  The Last Will and Testament which shows her entitlement to his entire estate is not sufficient evidence for entitlement to the SBP. 

4.  In view of the foregoing, she 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 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)                                         AR20120000575





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ABCMR Record of Proceedings (cont)                                         AR20120000575



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