IN THE CASE OF:
BOARD DATE: 12 August 2014
DOCKET NUMBER: AR20130019461
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 records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states she did not know about the grace period.
3. The applicant provides:
* marriage certificate
* verification of a dissolution of marriage
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the Defense Finance and Accounting Service (DFAS), dated 16 March 2010
* verification of death record
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 enlisted in the Regular Army on 16 May 1978. He married the applicant on 22 December 1979.
3. The FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 15 February 1995, shows he enrolled in the SBP for spouse-only coverage, full base amount.
4. He retired on 28 February 1995 in the rank of staff sergeant.
5. The applicant and the FSM divorced in April 1996.
6. There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.
7. The applicant provides a DFAS letter, dated 16 March 2010, which states an annuity cannot be established on her behalf since former spouse coverage was never elected by the FSM and never deemed by her.
8. The applicant provided a verification of death record which shows the FSM died on 17 September 2010. However, this document is not a death certificate and does not show if the FSM was married at the time of his death.
9. DFAS records show:
* the applicant is listed as the FSM's SBP beneficiary
* the FSM continued to pay SBP premiums until his death
* no one is receiving the annuity
10. 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.
11. Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
12. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
13. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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.
14. 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. There is no evidence to show the FSM requested to change his SBP coverage to former spouse coverage within the statutory 1-year time limit.
2. Although the FSM continued to pay SBP premiums after their divorce, there is no genuine evidence he never remarried. Since it cannot be determined if he was married at the time of his death and had a spouse with a vested interest in the SBP as the FSM's legal beneficiary, regrettably, there is insufficient evidence on which to base the 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 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) AR20130019461
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ABCMR Record of Proceedings (cont) AR20130019461
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