IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009349 


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 payment of monies received by the (now deceased) former spouse of her deceased husband, a former service member (FSM).   

2.  The applicant, after a telephone conversation with the case analyst of record, states: 

* Her deceased husband, the FSM, was previously married to Ferxxxxxx but they were divorced on 16 September 1976
* Their divorce decree stated she (Ferxxxxxx) would receive a portion of the FSM's retired pay
* The FSM's former spouse, Ferxxxxxx, died on 23 December 2000 but she (the applicant) was not aware of her death until recently
* She filed a claim with the Defense Finance and Accounting Service (DFAS) for any monies received by the first spouse
* Her claim was denied by DFAS because she did not file within 6 years of his death

3.  The applicant provides:

* Letter, dated 18 April 2012 from DFAS
* FSM's certificate of death
* Her marriage certificate
* Ferxxxxxx's death certificate
* DD Form 2656-7 (Verification of Survivor Annuity)
* Direct Deposit Form and a voided personal check
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 was born on 13 April 1924.  He and Ferxxxxxx were married on 7 November 1946.

3.  Having had prior enlisted service, the FSM was appointed as a Reserve warrant officer of the Army and entered active duty on 1 July 1968.  He served in a variety of stateside or overseas assignments and he attained the rank of chief warrant officer two (CW2).

4.  On 24 April 1973, in anticipation of his upcoming retirement, he completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Ferxxxxxx.  He elected an annuity under the SBP based on a reduced amount of $500.00.  

5.  The FSM retired on 31 October 1973 and he was placed on the Retired List in his retired grade of CW2 on 1 November 1973.

6.  It appears the FSM and Fernxxxxx were divorced on 16 September 1976, according to the applicant.  The divorce decree is not available for review with this case.  It is unknown what the divorce decree stipulated with respect to the division of assets between the FSM and his former spouse Fernxxxxx.

7.  The FSM and Margxxxx, the applicant, were married on 18 September 1977.

8.  The FSM died on 23 December 1995.  His death certificate shows he was married to Margxxxx, the applicant, at the time of death.  

9.  Soon after the FSM's death, DFAS established an annuity to the applicant beginning 24 December 1995.  The applicant has been receiving the SBP annuity ($1,329.00) since his death.
10.  The applicant provides a copy of Fernxxxx's (the FSM's former spouse) death certificate.  She died on 23 December 2000.

11.  It appears the applicant wrote to DFAS requesting any monies that Ferxxxxx, the FSM's former spouse, had been receiving as a result of her divorce from the FSM be now paid to the applicant since the former spouse had died. 

12.  On 18 April 2012, by letter, DFAS responded to the applicant in relation to "the retired pay account of Ferxxxxxx, deceased on 23 December 2000," and informed her that:

	a.  A claim against the Government must be filed within 6 years of the date that the claim first occurred.  If the widow does not file a claim for the annuity within 6 years of the death of a retiree, he/she has completely lost his/her right to the benefit.

	b.  As long as the SBP existed at the time of the member's death, he/she must file a claim for the annuity within 6 years of the retiree's death in order to receive the annuity.  Based on the 6-year barring statute, her application for SBP and/or RSFPP (Retired Serviceman's Family Protection Plan) has been denied. 

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was married to Ferxxxxxx between 7 November 1946 and 16 September 1976.  He had retired on 31 October 1973.  Their divorce decree is not available for review with this case and as such, it remains unknown what stipulations it made with respect to the division of assets, specifically retired pay. 

2.  Any money vested to Ferxxxxxx by virtue of her divorce from the FSM is a civil matter that is not within the purview of this Board.  Furthermore, since the FSM died on 23 December 1995, DFAS would have stopped paying Ferxxxxxx any money from the FSM's retired pay.  

3.  The FSM and applicant were married on 18 September 1977.  He died on 23 December 1995.  Since SBP election is by category not by name, an SBP annuity was established for the applicant based on his death.  Both DFAS and the applicant confirmed that the SBP annuity is in order and has been paid since December 1995.  

4.  There is insufficient evidence to support the applicant's contention that she is entitled to any additional money.  There was none paid to the FSM's former spouse after his death.  There is none to be claimed by the applicant.  Therefore, 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)                                         AR20120009349



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ABCMR Record of Proceedings (cont)                                         AR20120009349



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