DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-105 
 
XXXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXXX 

 

 
 

FINAL DECISION 

 
ULMER, Chair: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title  10  and  section  425  of  title  14  of  the  United  States  Code.    The  application  was 
docketed on June 23, 2003, upon receipt of a completed application from the applicant's 
former spouse and the applicant's military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 25, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
 The applicant's former spouse filed this application asking for a correction to the 
applicant's military record.  She asked that the applicant's record be corrected to show 
that  she  (former  spouse)  is  entitled  to  50%  of  the  applicant's  retired  pay  under  the 
Survivor Benefits Plan (SBP), effective March 24, 2001. The applicant died on March 25, 
2001. The applicant's death certificate indicates that he was divorced and does not name 
a surviving spouse. At the time the Board docketed this application, it was not aware 
that the applicant had divorced the former spouse. 
 

APPLICANT ALLEGATIONS 

 
 
 
The applicant's former spouse alleged that she "was never offered the survivor 
benefit program when [the applicant] retired and had no knowledge that she needed to 
be enrolled in SBP to continue collecting retirement benefits."  The former spouse stated 
that she is only getting social security and is in need of increased income.  She further 
stated  that  she  did  not  discover  the  alleged  error  until  August  31,  2001,  after  the 

applicant's death. 
 
 
Two  of  the  applicant's  children  wrote  a  letter  to  a  military  pay  supervisor  on 
September 11, 2001, inquiring about their mother's claim that she was entitled to 50% of 
their deceased father's retired pay.  They stated that their father had been diagnosed by 
the Department of Veterans Affairs (DVA) with schizophrenia and was in no position to 
have  enrolled  their  mother  in  SBP  prior  to  his  death.    They  further  stated  that  their 
father  had  frequent  angry  outbursts  and  periods  of  violent  behavior  and  that  their 
mother  would  have  feared  for  her  safety  if  she  had  submitted  her  divorce  decree 
claiming her right to half of their father's retired pay. 
  

SUMMARY OF RECORD 

 
 
The applicant retired from the Coast Guard on May 31, 1973 with twenty years 
 
and ten months of active service.  At retirement, he did not elect SBP coverage for his 
then wife or for his then minor children.  He acknowledged the following warning, by 
signature,  on  the  SBP  election  certificate:    "The  decision  you  make  with  respect  to 
participation  in  this  [SBP]  is  a  permanent  irrevocable  decision.    Please  consider  your 
decision  and  its  effects  carefully."  At  the  time  of  the  applicant's  retirement,  spousal 
consent was not required for SBP non-participation. 
 

There  have  been  three  SBP  open  enrollment  periods  since  the  applicant's 
retirement  on  May  31,  1973.    They  were  from  October  1,  1981  to  September  30,  1982, 
April  1,  1991  to  March  31,  1993,  and  from  March  1,  1999  to  February  29,  2000.    The 
applicant did not elect SBP coverage for his former spouse during any of the SBP open 
enrollment periods.  
 
 
According  to  the  applicant's  former  spouse,  their  children,  and  the  applicant's 
death certificate, the applicant and his former spouse had divorced.  On March 15, 1988, 
the  Circuit  Court  of  the  State  of  Oregon  entered  a  stipulated  decree  dividing  the 
couple's marital property, ordering the custody of and child support payments for their 
minor children, and ordering alimony for the then spouse.  The stipulated decree did 
not  mandate  that  the  applicant  elect  SBP  coverage  for  his  then  spouse,  nor  did  it 
mention the applicant's military retirement or retired pay.  The decree directed the DVA 
to continue paying the former spouse "an apportionment" resulting from the applicant's 
DVA disability compensation.   

VIEWS OF THE COAST GUARD 

 

 
 
On November 7, 2003, the Judge Advocate General of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request.   TJAG 
stated the following: 
 

Applicant's [former spouse] requested that the Board change her deceased 
ex-husband's record to indicate that he had elected her as the beneficiary 
under the [SBP] effective March 24, 01, the date of his death.  The record 
indicates the [applicant] retired from active duty on 01 June 1973 with the 
rank  of  Subsistence  Specialist  First  Class  (SS1)  after  20  years  and  9 
[months and 26 days] of active service.  On 21 May 1973 [the applicant] 
completed  DD  Form  1883  entitled  "Survivor  Benefit  Plan  Election 
Certificate."    On  that  form,  he  indicated  that  he  had  a  spouse  and 
dependent children, but that he did not want an annuity under SBP.  That 
form clearly cautioned the reader:  "The decision you make with respect to 
participation  in  this  [SBP]  is  a  permanent  irrevocable  decision.    Please 
consider  your  decision  and  its  effect  very  carefully."    At  the  time  of  his 
retirement, there was no requirement for the [former spouse] to concur in 
her then husband's decision regarding SBP.  The [former spouse] and [the 
applicant]  divorced  on  15  March  1988.    The  divorce  decree  does  not 
address  [the  applicant's]  retired  pay  or  the  issue  of  SBP  election.    [The 
applicant]  never  attempted  to  enroll  in  SBP  during  the  open  enrollment 
periods beginning in 1982 and 1992.  [The former spouse] never sought a 
court order to force [the applicant] to enroll in SBP.  Although [the former 
spouse] is a sympathetic figure, there is neither error for the Coast Guard 
to fix, nor injustice for the Board to right.   

 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  January  1,  2003,  the  BCMR  received  the  former  spouse's  response  to  the 
views of the Coast Guard.  She stated that she did not know that she could have applied 
for SBP and that she did not have the funds to hire an attorney to obtain a court order 
forcing the applicant to elect SBP coverage for her.  She stated that she was not aware 
that electing SBP coverage required the payment of premiums.   
 
 
The former spouse stated that she is sixty-nine years of age and is taking care of a 
mentally  ill  son.    She  stated  that  she  does  not  have  life  insurance  and  would  like  to 
leave her children some funds for her burial expenses.  She stated that she only receives 
$1,000 per month from Social Security. 

FINDINGS AND CONCLUSIONS 

 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 
 

1. 

The Board has subject matter jurisdiction concerning this matter pursuant 

to section 1552 of title 10 of the United States Code.  

 
2.    The  former  spouse  has  no  standing  to  ask  for  correction  of  the  applicant's 
military record.  As a former spouse, she does not have standing to request a correction 
of  the  applicant's  record  unless  she  has  an  appointment  as  the  applicant's  legal 
representative.  According to section 1552(b) of title 10 of the United States Code, "No 
correction may be made . . . unless the claimant or his heir or legal representative files a 
request for the correction. "  The Board's rules at 33 CFR § 52.21(b) state that a family 
member  or  legal  representative  may  sign  the  application  in  the  case  of  a  deceased 
member.  A divorce severs the legal relationship between husband and wife.  Therefore, 
the former spouse is not a legal member of the applicant's surviving family and she has 
not  submitted  any  evidence  showing  that  she  has  been  appointed  as  the  applicant's 
legal representative.     
 

3.  At the time the Board placed this application on the docket it was not aware of 
the applicant's divorce from his former spouse.  The Board only became aware of the 
divorce  on  November  5,  2003,  upon  receipt  of  the  Coast  Guard's  advisory  opinion.   
This application should therefore be dismissed for lack of standing.   

 
 
4.  Moreover, even if the former spouse had standing to request a correction of 
the applicant's military record, such request would be denied because it was not timely.   
To be timely, an application for correction of a military record must be submitted within 
three years after the applicant discovered or should have discovered the alleged error or 
injustice.  See 33 CFR 52.22.   This application was submitted approximately 30 years 
after the applicant's retirement and 15 years after his divorce from his former spouse.     
 
 
5.  The Board may still consider an untimely application on the merits, however, 
if it finds it is in the interest of justice to do so.  The interest of justice is determined by 
taking into consideration the reasons for and the length of the delay and the likelihood 
of success on the merits of the claim. See, Dickson v. Secretary of Defense, 68 F. 3d 1396 
(D.D.C. 1995). 

6.  The applicant's former spouse claimed that she did not discover the alleged 
error  until  August  2001,  after  the  applicant  had  died.    The  alleged  error  should  have 
been discovered sooner.  The applicant retired in 1973 and was married to the former 
spouse until 1988, giving her ample time to review documents related to his retirement 
and pay.  In addition, the former spouse should have become aware at the time of her 
divorce  that  the  applicant  had  not  elected  to  cover  her  under  SBP.    She  had  the 
representation  of  an  attorney  during  her  1988  divorce  proceeding,  which  included  a 
detailed division of their marital property.  

 
 
7.    With  respect  to  the  merits  of  the  former  spouse's  claim  for  coverage  under 
SBP, the Board finds that it is not likely that she would prevail on them.  She has not 

demonstrated  that  the  Coast  Guard  committed  an  error  or  injustice  in  this  case.    The 
applicant elected not to cover his then spouse or his then minor children under the SBP 
when he retired in 1973, and there was no requirement at that time that the spouse had 
to  agree  with  his  non-election.  Despite  the  applicant  being  diagnosed  with 
schizophrenia  after  his  retirement,  no  effort  was  made  by  the  former  spouse  or  their 
children to seek SBP coverage for the former spouse during any of the three SBP open 
enrollment periods, one such open enrollment occurring prior to the couple's divorce.   
 

8.    Moreover,  Article  18.F.13.b.  of  the  Personnel  Manual  provides  that  former 
spouse  SBP  elections  are  made  in  writing  with  the  service  member's  knowledge  and 
consent  or  by  court  order.   In  this  case,  the stipulated  decree  dividing  the  applicant's 
and former spouse's marital property does not direct the applicant to elect SBP coverage 
for the former spouse. She has not presented any evidence why the applicant was not 
ordered to make an SBP election for her in the stipulated decree.  Nor has she presented 
persuasive evidence that it was the applicant's intent to elect SBP coverage for her after 
his retirement.  Her mere allegation that she is entitled to 50% of the applicant's retired 
pay  under  SBP,  after  his  death,  is  insufficient  to  establish  that  the  Coast  Guard 
committed an error or injustice in this case.  Therefore, based on the length of the delay, 
the  reasons  (or  lack  thereof)  for  not  filing  an  application  sooner,  and  the  lack  of 
probable success on the merits of her claim, the Board finds that it would not be in the 
interest of justice to waive the statute of limitations in this case even if the applicant had 
standing to request a correction of the applicant's military record. 
 
9.  Accordingly, the application of the applicant's former spouse for correction of 
 
the applicant's military record should be dismissed with prejudice for lack of standing.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 
 

 
 
 

ORDER 

 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

        

 
 Philip B. Busch  

 

The application of XXXXXXXXXXXXXXX for the correction of the military record 
of  XXXXXXXXXXXXXXXXXXX,  USCG  (Ret.)  (deceased)  is  dismissed,  with  prejudice, 
because  she  has  not  established  that  she  has  a  legal  right  to  request  correction  of  the 
applicant's military record.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
             Marc J. Weinberger 

 
             George A. Weller