IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120007646 


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, 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" and payment of the SBP annuity based on his death.

2.  The applicant states:

* her former husband was abusive, violent, and physical; she and the children endured various challenges
* she married the FSM in 1951 and she became a U.S. citizen in 1956
* he served her with divorce papers when he was stationed in St. Louis
* she and the FSM were divorced and their divorce decree stipulated that she was to be the continued beneficiary
* she was not informed of her former-spouse benefits when they divorced
* she did not know she could deem the election
* her former husband withheld information from her regarding her benefits during and after their divorce
* she communicated with officials at the Defense Finance and Accounting Service (DFAS), but she was told she did not deem the election within 1 year
* the FSM has since remarried


3.  The applicant provides:

* Congressional correspondence
* certificate of divorce
* sworn statement from the FSM
* document written in Polish
* FSM's certificate of death
* FSM's widow's certificate of death
* divorce documents and associated notices
* correspondence from DFAS
* FSM's last will

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's records show he was born on 15 July 1928.  He initially enlisted in the Regular Army on 12 June 1949 and served through multiple reenlistments in a variety of stateside and overseas assignments.

3.  The FSM and applicant were married on 13 December 1951.  They had two children, Linda and Robert.

4.  On 9 March 1965, the FSM completed a DA Form 1041 (Election of Options under Retired Serviceman's Family Protection Plan).  He indicated he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.

5.  On 17 December 1965, the FSM and applicant were divorced.

6.  The FSM was appointed as a Reserve warrant officer of the Army with concurrent call to active duty on 15 February 1968.  He served in a variety of stateside and overseas assignments and he attained the rank of chief warrant 
officer three (CW3).

7.  On 24 May 1976 in connection with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated he was married to "Barbara" and they had a child, Richard, born on 24 May 1967.  He elected spouse and children SBP coverage based on a reduced amount of $300.00.

8.  On 31 May 1976, he retired.  He was placed on the Retired List in the rank of CW3 on 1 June 1976.

9.  On 5 January 1998, the FSM died.  The certificate of death listed "Barbara" as the surviving spouse.

10. On 11 May 2000, "Barbara" died.

11.  On 2 May 2003, DFAS notified the applicant's Member of Congress that the FSM and applicant were divorced on 17 December 1965.  At that time, the only plan offered by the Department of Defense that provided an annuity to a surviving beneficiary was the Retired Serviceman's Family Protection Plan (RSFPP).  There is no provision for a former spouse to receive an annuity under this plan.  In 1972, the SBP was established; however, the FSM did not elect former spouse coverage under this plan.  Accordingly, the applicant was not entitled to an annuity in connection with the retired pay account of the FSM.

12.  On 21 April 2008, DFAS advised the applicant's Member of Congress that a review of the FSM's records revealed he did not elect SBP coverage for former spouse or child; therefore, the applicant and her children were not entitled to an SBP annuity.  She is not eligible for any other benefits from the FSM's retired pay account.

13.  Public Law 87-381, enacted 4 October 1961, established the RSFPP to provide an annuity to a surviving family beneficiary.  

14.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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.

15.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

16.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

17.  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.

18.  Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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 evidence of record shows the FSM and applicant were married on 13 December 1951.  On 9 March 1965, the FSM completed a DA Form 1041 and indicated he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.  The couple were divorced on 17 December 1965.

2.  It appears the FSM later married "Barbara."  As he prepared for retirement, he completed a DA Form 4240 wherein he elected spouse and child SBP coverage. 
He died on 4 January 1998.

3.  Since SBP elections are made by category, not by name, in the event of death, any SBP benefits would be paid to the beneficiary in effect at the time of death (his widow, not his former spouse) if they had been married for at least 1 year.

4.  The challenges the applicant endured throughout her marriage to the FSM are noted.  However, the applicant was never an eligible SBP beneficiary.  They divorced prior to the time former spouse coverage was established and before courts could order former spouse coverage.  Regrettably, she is not entitled to the SBP annuity.

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)                                         AR20120007646



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007646



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1