BOARD DATE: 20 March 2014
DOCKET NUMBER: AR20130007668
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 his Survivor Benefit Plan (SBP) election be changed to a spouse election and that she be paid the annuity.
2. The applicant states:
* she applied several times for the SBP and never received it
* the FSM took an annuity out for her
3. The applicant provides:
* Letter, dated 24 September 2002, from the Casualty Assistance Office, Fort Campbell, KY
* Department of Veterans Affairs documentation
* FSM's death certificate
* DD Form 2618 (SBP Open Enrollment Election)
* Direct deposit form
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Marriage certificates
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 1 May 1930. He enlisted in the Regular Army on
10 November 1948. He married the applicant in August 1950 and they divorced in 1971. He married Mary on 18 December 1971.
3. The FSM's DD Form 1883 (SBP Election Certificate), dated 22 January 1973, shows he was married with dependent children and he enrolled in the SBP.
4. He retired in the rank of master sergeant on 31 January 1973.
5. He divorced Mary in May 1992. The divorce decree does not award her the SBP.
6. He married the applicant on 29 June 1992.
7. The available records do not contain a deemed election for former spouse coverage, but Defense Finance and Accounting Service (DFAS) records show the case was converted from Army records with Mary designated as the former spouse SBP beneficiary.
8. DFAS records contain an account statement indicating that Mary was the former spouse beneficiary and a letter from the FSM in October 1995 saying that he wrote on 1 July 1992 and "Cancelled former wife Mary D. Matteson as of
1 July 1992 on DEERS [Defense Enrollment Eligibility Reporting System] put former spouse on charge [sic] of SBP." The applicant signed this letter too.
9. The applicant provides a DD Form 2618, dated 9 November 1992, which shows the FSM elected spouse and children coverage.
10. The FSM died in August 2002. He was married to the applicant when he died.
11. DFAS records show Mary as the SBP annuitant.
12. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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.
DISCUSSION AND CONCLUSIONS:
1. DFAS records show Mary as the former spouse SBP annuitant.
2. The applicant requests the FSM's election be changed to a spouse election and she be paid the annuity.
3. The applicant's contentions were carefully considered. However, it appears from the October 1995 letter that the FSM at some earlier point requested former spouse coverage for Mary (although the wording of the letter is confusing). If this was a voluntary election of former spouse coverage, the FSM could have dropped it and added the applicant as spouse within one year of marriage or added her during an Open Season enrollment period. There is in fact some evidence he attempted to do so and that the Government erred.
4. Unfortunately, the records extant at the time of the FSM's death still showed Mary as his former spouse annuitant and she has been paid the annuity for over a decade. Even in the face of potential error the Board cannot make a correction which would create a debt for a third party.
5. Regrettably, the applicant's only possible avenue of relief lies in court.
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) AR20130007668
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ABCMR Record of Proceedings (cont) AR20130007668
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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