BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120016430 


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 correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

	a.  she requests the statute of limitations for her survivor annuity claim be reinstated because the Department of the Army, U.S. Army Reserve (USAR) Personnel Command at St. Louis, MO did not process her claim and sent her a denial letter in December 2004.

	b.  she was not aware there was a time limitation on filing for a survivor annuity claim.  She was not properly counseled and she could not get any assistance from the Army Reserve branch.  She was married to the FSM for
25 years.

	c.  after his death in 2004, she contacted the USAR Personnel Command seeking assistance.  She was notified by letter in December 2004 she was not entitled to the survivor annuity because they were divorced at the time of the FSM's death and he had remarried.  Her name is on the DD Form 1883 (SBP Election Certificate) because the FSM wanted her to have the annuity.

	d.  in May 2012, she completed an SBP packet.


	e.  in July 2012, she received a denial letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY citing the statute of limitations had run out.

3.  The applicant provides:

* Letter from the USAR Personnel Command, St. Louis, MO, dated
13 December 2004
* Letter from the Chief, Retired Pay Branch, HRC, Fort Knox, dated 12 July 2012
* DD Form 1883, dated 3 July 1993
* FSM's notification of eligibility for retired pay at age 60 (20-year letter), dated 19 February 1993
* FSM's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 May 2012
* Her Alabama Driver License
* DD Form 2656-7 (Verification for Survivor Annuity), dated 29 May 2012
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), undated
* Standard Form 1199A (Direct Deposit Sign-Up Form), dated 29 May 2012
* Final Decree of Divorce, dated 22 November 1999
* FSM's Certificate of Death
* Her marriage license, dated 4 December 1974

 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 21 November 1951.  Having prior service in the Army of the United States, he enlisted in the USAR on 11 April 1973.

3.  He married the applicant on 4 December 1974.


4.  On 19 February 1993, he received his notification of eligibility for retired pay at age 60.

5.  The applicant provided a DD Form 1883, dated 3 July 1993, that shows the FSM enrolled in the SBP and elected spouse and children coverage, full amount, and Option C (Immediate Coverage).

6.  He was discharged from the USAR in the rank of sergeant first class (SFC) on 25 September 1998 and transferred to the Retired Reserve.  

7.  The FSM and the applicant divorced on 22 November 1999.  The final divorce decree indicates the applicant was to receive one half of the FSM's military retired pay.  There is no mention of an SBP annuity.

8.  The FSM married "E---n G----a S----r" on 24 January 2000.

9.  On 13 October 2004, the FSM died.  His Certificate of Death identifies "E---n G----a" as the FSM's spouse and informant.

10.  The applicant provides a letter from the USAR Personnel Command, dated
13 December 2004, that states:

	a.  there is no provision in the law governing the SBP whereby a divorced spouse may be granted a survivor benefit annuity.

	b.  there is no provision in recent enacted "former spouse" legislation that would allow an annuity to be paid to a former spouse unless both parties voluntarily enact the agreement to provide an annuity in event of the service member's death.  Their records indicate the applicant was divorced on 
22 November 1999 and the divorce decree clearly states the FSM was to provide her one half of his military retired pay.  It also states the said military retired pay is to begin when he reaches his 60th birthday.

	c.  in light of this information and because the applicant was divorced prior to the FSM's untimely death on 13 October 2004, she is ineligible for an annuity.

11.  She provides a DD Form 2656-7, dated 29 May 2012.

12.  The Defense Finance and Accounting Service (DFAS) confirmed the FSM's spouse, "E---n G----a," received the SBP annuity until her death in 2008.


13.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.  Elections are made by category, not by name.

14.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  

15.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

16.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  RCSBP elections are made by category, not by name.  As long as she was the FSM's spouse, she was the SBP beneficiary; however, once they divorced she was no longer a beneficiary.

2.  There is also no evidence to show the FSM voluntarily requested that his SBP coverage be changed to former spouse coverage.

3.  The evidence of record shows the FSM remarried.  At the 1-year anniversary of their marriage his spouse would have acquired a vested interest in the SBP as the FSM's legal beneficiary under his previous election of spouse coverage.

4.  The applicant was not awarded RCSBP coverage in the divorce.  She was only awarded a portion of what would have been his current retired pay had he reached age 60.

5.  Although the FSM's widow, "E---n G----a," is deceased, it does not change the outcome since she was the FSM's legal beneficiary at the time of the FSM's death.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120016430



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ABCMR Record of Proceedings (cont)                                         AR20120016430



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