BOARD DATE: 20 June 2013
DOCKET NUMBER: AR20120021989
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 former service member (FSM), requests correction of the FSM's records to show he enrolled in the Survivor Benefit Plan (SBP) and changed her from spouse to former spouse so that she may be entitled to an annuity.
2. She states she and the FSM were married for a total of 17 years. She maintains that upon the FSM's retirement, the FSM enrolled in the SBP and she was named as his beneficiary. She maintains it was the FSM's responsibility to change their status accordingly upon their divorce. However, this did not occur and she was not aware of this fact until after his death.
3. She provides the following:
* Self-authored statement
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 107-002, dated 17 April 2001
* State of Arizona Certificate of Death
* Marriage Certificate
* Divorce Decree
* Social Security Card and State of Arizona Driver License
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 24 April 1980. On 23 June 1988, he and the applicant were married.
2. On 16 July 2001, he completed a DD Form 2656 (Data for Payment of Retired Personnel). Section IX - SBP Election shows he elected coverage for spouse and children based on full gross pay without supplemental SBP.
3. On 30 September 2001, he was honorably retired.
4. On 11 April 2005, the FSM and the applicant divorced. Paragraph V, Property Division, of the applicant's divorce decree awarded her 31 per cent of the FSM's retirement and cost of living increases. The divorce degree is void of any information pertaining to the SBP.
5. The FSM died on 6 October 2012. The death certificate lists his marital status as divorced.
6. In the processing of this case, the Board's staff contacted the Defense Finance and Accounting Service (DFAS). DFAS informed the Board's staff their records indicate the FSM and applicant divorced on 11 April 2005 at which time the FSM changed his original coverage from spouse and child to child only.
7. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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.
8. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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 evidence of record shows the FSM and the applicant were divorced on
11 April 2005. Although the applicant's divorce decree awarded her a portion of the FSM's military retirement, there is no evidence indicating the court ordered the FSM to continue SBP payments and to retain her as the beneficiary on his SBP as a former spouse.
2. The evidence further shows that effective 11 April 2005, the FSM changed his SBP election from spouse and child to child only.
3. Regrettably, in view of the foregoing there is no basis for granting her 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.
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ABCMR Record of Proceedings (cont) AR20120021989
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