IN THE CASE OF:
BOARD DATE: 30 May 2013
DOCKET NUMBER: AR20120018480
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 elected former spouse Survivor Benefit Plan (SBP) coverage for her in conjunction with their divorce.
2. The applicant states the FSM was not of sound mind in the last years of his life and he was not making good decisions. She states the Defense Finance and Accounting Service (DFAS) told her the FSM had her taken off the records for receiving SBP in the event of his death which is an example of his unsound decisions.
3. The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following attached documents) of the application in support of her request.
CONSIDERATION OF EVIDENCE:
1. The FSM's record shows that on 24 March 1969 he was honorably retired, by reason of physical disability, in the rank of specialist seven (SP7)/E-7. The
DD Form 214 he was issued at the time shows he completed a total of 10 years, 9 months, and 21 days of active military service. The record shows the FSM was married to someone other than the applicant at the time of his retirement. The record contains an AGPZ Form 977 (Data for Retired Pay), dated 17 March 1969, which shows the FSM made no Retired Servicemenbers Family Protection Plan (RSFPP) election at the time.
2. The applicant and FSM were married on 10 November 1986. On
8 August 2011, the applicant and FSM were divorced. The Decree of Divorce issued by the District Court, Ninth Judicial District, Family Court Division, County of Cass, State of Minnesota, made no mention of SBP benefits either specifically or by implication.
3. On 29 December 2012, the FSM died.
4. On 21 March 2012, in response to the applicants request for an SBP annuity based on the death of the FSM, DFAS responded to the applicant by stating the FSM did not elect to participate in the SBP, or its predecessor, the RSFPP. DFAS informed the applicant that based on the FSMs declination of these plans, her application for an SBP and/or RSFPP annuity was denied.
5. Public Law 92-425, the SBP, enacted 21 September 1972, 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.
6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct the FSM's record to show her as the beneficiary of his SBP/RSFPP has been carefully considered. However, given that the FSM never enrolled in the SBP, there is insufficient evidence to support this claim either in law or as a matter of equity.
2. By law, a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse may make such an election. However, in this case the court could not have awarded the applicant the SBP anyway, since the FSM had never enrolled in the SBP.
3. As a result, there is an insufficient evidentiary basis to support granting 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) AR20120018480
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ABCMR Record of Proceedings (cont) AR20120018480
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