IN THE CASE OF:
BOARD DATE: 27 June 2013
DOCKET NUMBER: AR20120019384
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 and her former husband were a military family beginning in 1972 until his retirement. During his 20 plus years he was a dedicated Soldier and family man. Throughout his career, she was by his side in support.
b. he was diagnosed with cancer in May 2007. A week prior to his death he assured her the pension, health care, life insurance, and commissary privileges were all set. Imagine her despair, sadness, and disbelief when she was told there was none.
3. The applicant provides:
* FSM's notification of eligibility for retired pay at age 60
* Chronological Statement of Retirement Points
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Marriage certificate
* Divorce decree
* FSM's death certificate
* Privacy Act Waiver
* Letter, dated 27 September 2012, from a Member of Congress
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 17 February 1948. He enlisted in the U.S. Army Reserve (USAR) on 29 May 1968. He and the applicant married on 10 June 1972.
3. On 2 March 1991, he received his notification of eligibility for retired pay at age 60.
4. His DD Form 1883 (SBP Election Certificate), dated 26 April 1991, shows he enrolled in the SBP and elected spouse and children coverage, full amount, and Option C (Immediate Coverage).
5. He was transferred to the Retired Reserve on 17 May 1994 in the rank of master sergeant.
6. He and the applicant divorced on 11 January 2005. The available divorce decree does not award the applicant the SBP.
7. There is no evidence the FSM changed his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.
8. He died at age 59 on 28 August 2007. His death certificate shows he was divorced.
9. His records contain a letter, dated 4 March 2008, from the Supervisor, Retirement and Annuities, U.S. Army Human Resources Command, St. Louis, MO which states:
* the FSM enrolled in the Reserve Component SBP when he received his notice of eligibility for retirement at age 60
* at that time he was married and elected coverage of his spouse and children
* he subsequently divorced
* he did not re-file with the Army to change his coverage to former spouse and therefore the applicant is not entitled to an annuity under the Army SBP
10. Records at the Defense Finance and Accounting Service show there is no one currently receiving the annuity.
11. 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.
12. 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.
13. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
14. 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:
There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit. The FSM died before age 60 and he did not pay any SBP premiums. Further, it does not appear the applicant was awarded SBP upon their divorce. Regrettably, there is no basis for granting the applicant's request.
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) AR20120019384
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ABCMR Record of Proceedings (cont) AR20120019384
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