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ARMY | BCMR | CY2013 | 20130004076
Original file (20130004076.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130004076 


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 widow of a deceased former service member (FSM), requests reconsideration of her request to correct the FSM's records to show eligibility status for Survivor Benefit Plan (SBP) benefits and that she be provided an annuity.

2.  She states that in her original application she did not include the legal court ordered amendment to the 2009 Divorce Property Settlement.  She adds that the order specifically stated that all paperwork be completed to ensure that she be entitled to the FSM's SBP annuity as the "ex-spouse."  She maintains that she and the FSM updated the paperwork to change her status as ex-spouse after their divorce and after their marriage they changed it again to "spouse."  She maintains that she and the FSM paid into the SBP during the length of their marriage. 

3.  She provides the Amendment to Property Settlement Agreement and the Superior Court of New Jersey, Second Amendment to Final Judgment of Divorce (page 1).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120000575, on 4 December 2012.

2.  The Property Settlement Agreement is new evidence that will be considered by the Board.

3.  On 31 July 1969, the FSM retired in the rank and pay grade of Chief Warrant Officer Two/W-2, after completing 20 years and 22 days of active military service. 

4.  The FSM's record shows he was previously married and the dissolution of that marriage was due to the death of his first wife on 26 March 1995.

5.  On 12 October 1995, the FSM and the applicant were married. 

6.  On 22 December 2009, the FSM and the applicant divorced.  She provided her Amendment to Property Settlement Agreement, dated 3 December 2010.  Paragraph 19, Army Pension, of the applicant's settlement agreement states the applicant is entitled to any and all available benefits and rights from the Army SBP pursuant to U.S. Army and federal regulations and law.  The FSM shall execute any and all documents from the U.S. Department of Defense, Army, or others as may be necessary, and provide such supplemental documentation as may be required, to effectuate such benefits under the SBP.

7.  On 29 June 2011, the FSM and the applicant remarried.

8.  On 23 November 2011, the FSM died.

9.  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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement may or may not be part of a court order for divorce, dissolution, or annulment (Title 10, U.S.C. 1450 (f) (2) (A) &(C).


11.  Title 10, U. S. Code, section 1447(7) defines "widow" to mean the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, must have been married to the member for at least 1 year immediately prior to the member's death.

DISCUSSION AND CONCLUSIONS:

1.  The amendment to Property Settlement Agreement awarded the applicant all available benefits and rights from the FSM's SBP as his "former spouse."  However, at the time of the applicant's death, she was his spouse and not his former spouse and as such, this agreement has no bearing on the case.

2.  The evidence of record shows the applicant and the FSM were remarried on
29 June 2011 and the FSM died on 23 November 2011 after less than five months of marriage.  In accordance with Title 10, U. S. Code, section 1447(7) since she was not married to the FSM at the time he became eligible for retired pay, she must have been married to the FSM for at least 1 year immediately prior to the his death in order to qualify for the SBP annuity.  Since this did not occur, she is not entitled to the SBP annuity.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120000575, dated 4 December 2012.



      _______ _   _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)                                         AR20130004076





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ABCMR Record of Proceedings (cont)                                         AR20130004076



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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