IN THE CASE OF:
BOARD DATE: 2 July 2013
DOCKET NUMBER: AR20120018119
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 correction of the deceased former service member's (FSM's) military records to show she was his spouse at the time of his death and should be the Survivor Benefit Plan (SBP) beneficiary.
2. The applicant states she was married to the FSM at the time of his death and was his SBP beneficiary.
3. The applicant provides:
* FSM's DA Form 4240 (Data for Payment of Retired Army Personnel)
* letter from the Department of Veterans Affairs, dated 16 December 2011
* email from the Department of the Army Retirement Services Office, dated 20 August 2012
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. Having prior inactive service in the Army National Guard, the FSM enlisted in the Regular Army on 23 October 1959.
3. On an unknown date, he married the applicant.
4. He remained on active duty through continuous reenlistments until he was honorably discharged in 1973 (later changed to a temporary disability retirement through ABCMR action).
5. His DA Form 4240, dated 18 December 1974, shows he enrolled in the SBP for spouse coverage, full base amount.
6. He was removed from the Temporary Disability Retired List and permanently retired on 31 December 1974.
7. The FSM died on 7 February 1979. The death certificate provided by the applicant is incomplete and does not show his marital status. Items 10-13 are missing from the certificate. The certificate shows his mother as the informant.
8. The FSM's records contain a U.S. Army Finance and Accounting Center (USAFAC) Retired Pay Operations Notification of Retiree Death, dated 20 February 1979, which shows the applicant as his next of kin.
9. The applicant provides an email from the Department of the Army Retirement Services Office to her daughter, dated 20 August 2012, which states:
a. The FSM's daughter's reference to the Uniformed Services Former Spouses' Protection Act (USFSPA) implies the applicant was the former spouse of the FSM at the time of his death. If the FSM elected spouse SBP at the time of his retirement and never changed it after his retirement, the applicant would not have been the spouse SBP beneficiary at the time of the FSM's death.
b. The applicant could apply to the ABCMR to change the FSM's military records to show the FSM elected former spouse coverage and that she applied for the annuity upon the FSM's death.
10. There is no evidence in the available records that shows the FSM and applicant were divorced.
11. The Defense Finance and Accounting Service does not have a record for the FSM.
12. 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.
13. Public Law 97-252, the USFSPA, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
14. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she was married to the FSM at the time of his death in 1979.
2. The USAFAC Retired Pay Operations Notification of Retiree Death, dated 20 February 1979, which shows the applicant as the FSM's next of kin was noted. However, since the death certificate provided by the applicant is incomplete and the FSM's marital status at the time of his death cannot be determined, there is insufficient evidence at this time with which to correct the FSM's military records to show the applicant was his spouse at the time of his death.
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) AR20120018119
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120018119
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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