IN THE CASE OF:
BOARD DATE: 26 February 2015
DOCKET NUMBER: AR20140008290
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 requests correction of the former service member's (FSM) date of death and award of Survivor Benefits Plan (SBP).
2. The applicant states the FSM was born on 20 November 1955 and died on 25 September 2012. Her divorce decree included a provision for her receipt of benefits under the Uniformed Services Former Spouse's Protection Act (USFSPA), which she has not received.
3. The applicant provides copies of
* the FSM's death certificate
* their marriage certificate
* the FSM's 6 November 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* their 29 July 1994 divorce decree
CONSIDERATION OF EVIDENCE:
1. The FSM served on active duty from 4 December 1974 through 6 November 1992, when he was discharged with physical disability severance pay.
2. The applicant and the FSM were married on 6 May 1977 and divorced on 29 July 1994.
3. The 1994 divorce decree provided that because the FSM failed to divide his severance pay, no child support was accessed against either party. In accordance with the USFSPA, the applicant would receive 43.25 percent of the FSM's current or future military retirement benefits. It was ordered that the FSM provide the applicant any military forms necessary for her to initiate and maintain any benefits she is entitled to under the USFSPA.
4. The death certificate provided shows the FSM passed away on 25 September 2012.
5. Public Law 92-425, enacted 21 September 1972, repealed the Retired Servicemans Family Protection Plan and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay (emphasis added) reduced to provide for an annuity after death to surviving dependents.
6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. This law decreed that state courts could treat military retired pay (emphasis added) as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the FSM by virtue of the FSMs residence in the state (other than pursuant to military orders), domicile in the State, or consent.
7. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a retired service member 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 one 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.
8. 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 one year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not provided or identified any document showing the FSM's date of death as other than that shown on the death certificate, nor would correction of such an error in a civilian document be within the Board's authority.
2. The available records do not contain any evidence that the FSM's discharge with disability severance pay was ever converted to retirement.
3. Since the FSM was not retired, he was not entitled to retired pay and accordingly there was no share of retired pay to be given to the applicant. Further, without receipt of retired pay an SBP annuity entitlement cannot be created.
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) AR20140008290
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ABCMR Record of Proceedings (cont) AR20140008290
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