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
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130004076
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120000575
The first marriage license shows the applicant (B.B., currently known as S.B.) DFAS stated since she and the FSM were not married at his date of retirement and because they were previously divorced, she did not meet the 1-year marriage requirement. The applicant did not provide sufficient evidence to show her entitlement to SBP as a former spouse, which would have been granted in a divorce decree or in an SBP Election Form.
ARMY | BCMR | CY2009 | 20090012684
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he participated in the Survivor Benefit Plan (SBP) with former spouse coverage. This document shows the applicant requested that the Court equitably distribute the parties' retirement plans, including, in pertinent part, "Military Retirement, or any and all other forms of retirement and death or survivor's benefits." c. Thus, the evidence of record shows...
ARMY | BCMR | CY2010 | 20100013171
The applicant requests, in effect, correction of her former spouse's records to show she made a deemed election under the Survivor Benefit Plan (SBP) within 1 year of their divorce. d. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election. f. Title 10, U.S. Code, section 1450(f)(3)(A), permits a...
ARMY | BCMR | CY2008 | 20080018659
On 23 May 2000, the applicant and the FSM were divorced. The Separation and Property Settlement Agreement to the Final Judgment of Dissolution of Marriage ordered the FSM to maintain the applicant as the beneficiary of his SBP election; that is, he was ordered to change his SBP coverage from spouse only to former spouse. On 7 June 2004, the applicant filed a request with DFAS for, in effect, a deemed election changing SBP coverage from spouse only to former spouse.
ARMY | BCMR | CY2010 | 20100022968
The applicant requests the records of her deceased former spouse, a former service member (FSM), be corrected to show she is the beneficiary of his Survivor Benefit Plan (SBP). 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. However, there was no such court order to maintain the applicant as the FSM's beneficiary as his "former spouse" on his SBP.
ARMY | BCMR | CY2009 | 20090008265
There is no evidence of record or independent evidence provided by the applicant that shows the FSM ever made the Former Spouse SBP election directed in the divorce decree, or that the applicant requested a deemed election be made within one year of their divorce. 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...
ARMY | BCMR | CY2011 | 20110024481
The applicant requests reconsideration of her earlier request for correction of her deceased former husband's records, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse. The applicant states: a. she now provides a notarized statement from the FSM's widow renouncing her right to an SBP annuity as indicated in the "Discussion and Conclusions" section of the original Record of Proceedings; and b. contrary to the Army Board...
ARMY | BCMR | CY2014 | 20140011503
The applicant, the former spouse of a former service member (FSM), requests correction of the FSM's records to show she is the eligible beneficiary to receive a Survivor Benefit Plan (SBP) annuity as a former spouse. Although the applicant's DOB is shown in the SBP section of the FSM's Retiree Account Statement, there is no evidence of record that shows the FSM changed his SBP category from "spouse" to "former spouse" coverage. There is also no evidence that the applicant notified DFAS in...
ARMY | BCMR | CY2004 | 20040005504C070208
The applicant requests either that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from spouse and children coverage to former spouse and children coverage or that his children be determined to be eligible beneficiaries for the SBP. 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 member was...
ARMY | BCMR | CY2011 | 20110018472
Counsel requests correction of the FSM's records to show he changed his SBP election from spouse to former spouse coverage. However, DFAS was unable to release any detailed information pertaining to the FSM's retired pay account due to the Privacy Act of 1974. l. ABCMR Docket Number AR2003083486, dated 27 March 2003, corrected the military records of a FSM to show that the FSM requested to change his SBP coverage to former spouse and children coverage and that his request was received and...