IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120020905 


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 record to show entitlement to the former spouse Survivor Benefit Plan (SBP) annuity.

2.  The applicant states her divorce decree states she was to have SBP coverage.  She has attempted on several occasions to get the FSM's record corrected to show her entitlement but she was not advised until recently of what the problem was or how to properly address it.

3.  The applicant provides:

* her Decree of Dissolution of Marriage, dated 23 May 1997
* her Divorce Decree, dated 31 March 1999
* a Petition for Citation for Indirect Contempt of Court, dated 29 November 2000
* a letter from the DOD Manpower Data Center, Seaside, CA, dated
15 March 2006

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.  With prior active and inactive service in the U.S. Army Reserve (USAR), the FSM enlisted in the Regular Army on 10 February 1984.  He was subsequently medically retired on 1 December 1989.

3.  At the time of his retirement the applicant and the FSM had completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  At this time the FSM elected SBP full spouse only coverage.

4.  The applicant and FSM had a son born on 27 June 1992.  The available records do not show he was added to the applicant's file in the Defense Enrollment Eligibility Reporting System (DEERS).  The applicant reports attempting to register her son under DEERS in 2006; however, the earliest available document is dated after the applicant's death.

5.  The applicant and FSM separated in 1997.  The divorce decree provides for child support; uninsured dental, optical, and medical expenses; and to "maintain health insurance coverage for the minor child and survivorship benefits as long as available through the military or his employer."

6.  The applicant provides the FSM's Certificate of Death that shows he died on 14 January 2008.  This certificate further shows his marital status as "Divorced (and not remarried)."

7.  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.  Surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  Changes in SBP options are not authorized except in specific instances, or as authorized by law.

8.  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.
9.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and/or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.  

10.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any evidence she made a written request for former spouse SBP coverage within the statutory 1-year limit after her divorce.

2.  Furthermore, contrary to the applicant's statement, the divorce decree does not grant her the SBP.  It states the FSM was to provide health insurance coverage and survivorship benefits for their son.  It does not specify that she was to receive the SBP or any survivorship benefits.  Additionally, there is no evidence the FSM added his son as a dependent under DEERS or included him for SBP entitlement within the statutory 1-year limit after his birth. 

3.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120020905



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ABCMR Record of Proceedings (cont)                                         AR20120020905



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