IN THE CASE OF:	  

		BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130013279 


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 designation as the deceased former service member's (FSM's) Survivor Benefit Plan (SBP) beneficiary.

2.  The applicant states she was married to the FSM while he was serving on active duty and in Vietnam.  She is the mother of his children.  After retiring, he left her and married another woman whom he named as beneficiary.  Most of the time he did not pay court-ordered child support.  Therefore, she should be the beneficiary.

3.  The applicant provides copies of the FSM's death certificate, birth certificate, pages 2 and 4 of the divorce decree, and a letter from her attorney detailing the basis for his billing for services.

CONSIDERATION OF EVIDENCE:

1.  The applicant and the FSM divorced effective 3 April 1979.  The divorce decree she submitted in support of her request is incomplete.  The portions she provided make no mention of SBP.

2.  The FSM retired in the rank of sergeant first class/pay grade E-7 on 31 August 1979.  His DA Form 4240 (Data for Payment of Retired Army Personnel) shows:

* Part I (Tax Status) – single
* Part II (Beneficiaries for Unpaid Retired Pay) – two daughters and a son as equal beneficiaries
* Part IV (Survivor Benefit Plan Election) – he was not married, he had three dependent children, he elected to provide them an SBP annuity at a reduced amount, and listed their names and ages

3.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the FSM was not married at the time of his retirement.  He was not required to make made an SBP spouse election and did not do so.  Instead, he opted to elect reduced coverage in favor of his children.

2.  There is insufficient evidence to warrant granting the relief requested.

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)                                         AR20130013279



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ABCMR Record of Proceedings (cont)                                         AR20130013279



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