ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  16 November 2020 DOCKET NUMBER:  AR20200001532 


APPLICANT REQUESTS:  Correction of FSM records to show full coverage for current spouse elected to participate in the Survivor Benefit Plan (SBP).   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Self-Authored Letter, dated 26 September 2019

.Marriage License, dated 29 March 1982

.Divorce Decree, dated 22 July 1985

.Marriage License, dated 25 October 1985

.Death Certificate, Dated 31 December 2018

.Letter from Defense Finance and Accounting Service, dated 18 September 2019



FACTS: 

1.The applicant did not file within the three- year time frame provided in Title 10,United States Code, section 1552(b); however, the ABCMR conducted a substantivereview of this case and determined it is in the interest of justice to excuse the applicant'sfailure to timely file.

2.The applicant requests the Survivor Benefit Plan (SBP) Election be corrected toshow full coverage for spouse effective October 1986.  The former service member(FSM) SBP election reflects Spouse Coverage, dated 1 Jul 2007.  Defense Finance andAccounting Service (DFAS) records does not show "Current Annuitant" listed.  DFASrefused to pay her since the FSM was not married at time of retirement.  DFAS referredher to the Army Review Board Agency for assistance by filling out a DD Form 149.  Shehas provided proof of their marriage at time of retirement, marriage certificate anddivorce decree.  She states according to the law; she was automatically covered on theone-year anniversary of their marriage.  Even though, he failed to suspend coveragewhen he got a divorce on 22 Jul 1985 or reinstate it when they married on26 October 1985, she is still covered.



3.A review of the FSM’s record shows on:

a.21 October 1959, the applicant was inducted in the US Army and served invarious assignments throughout the world including Vietnam and Korea. 



b.25 May 1984, (Orders 116-104), published by Headquarters 4th Infantry Division,Fort Carson, the applicant was released from active duty and placed on the retired list with an effective date of 30 September 1984. 



c.3 August 1984, Data for Payment of Retired Army Personnel was submitted bythe applicant and under Part III (Survivor Benefit Plan Election) shows, he was married with dependents.  It further shows he elected spouse and dependent children coverage at the full rate.  Under Part VI, he certified the form. 



d.30 September 1984, the applicant was issued a DD Form 214 (Certificate ofRelease or Discharge from Active Duty) that shows he had a total of 10 years, 9 months and 21 days of net active duty service, with total prior active service of 14 years, 01 month and 19 days.  There is no prior inactive duty service.  He had 24 years,     11 months and 10 days of honorable service for pay purposes.  His type of separation was retirement with narrative reason for separation as Length of Service. 



4.The applicant served in Korea from 8 June 1963 through 26 June 1964.  Based onthe service, he is authorized the Korea Defense Service Medal.  This award will beadministratively corrected and not considered by the Board.

5.According to Defense Retiree and Annuitant Pay System (DRAS), the FSM hadspouse coverage.  His original election in 1984 was for spouse and child and since thechildren have aged out, it is for spouse.  It did not show a divorce date.

6.The applicant provides:

a.A response letter to DFAS wherein she contends her claim was denied becauseDFAS shows the applicant was not married at the time of retirement.  His account reflected spouse and child coverage upon retirement.  She provided proof of her marriage at time of retirement.  She also provided a copy of the divorce decree proving that he was married at time of retirement.  She then contends she was automatically covered on the one-year anniversary of their marriage.  Even though he failed to suspend coverage and reinstate it when he was remarried, the law automatically covered her on the one-year anniversary of their married.  She did not feel she should have to submit an application for correction of record, since all documented proof is available. 



b.A copy of the marriage license to the first wife dated 29 March 1982 wasprovided. 



c.The divorce decree dated 18 July 1985 reflected the dissolution of the firstmarriage. 



d.The marriage license reflecting the applicant‘s marriage to the FSM in October1985. 



e.A death certificate reflecting the death of the applicant dated 31 December 2018.



f.DFAS denied the application to receive annuity under the Survivor Benefit Planof the FSM.  Their records reflected the FSM was not married at the time of retirement.  His account showed spouse and child coverage upon retirement, however they contend it was an incorrect election at the time of retirement.   



8.Regulatory guidance is found under REFERENCES.

BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted.  The applicant’scontentions, the military record, and regulatory guidance were carefully considered.The evidence clearly shows the FSM was married when he placed on the retired list.He divorced his first spouse within a year after retiring.  There is no evidence the FSMterminated his election, changed the election to former spouse coverage, nor that theex-wife deemed an election to the SBP.  The divorce decree provided shows the FSMand his former spouse had a property settlement agreement attached to the divorce;however, the settlement agreement was not provided as evidence.  This made itchallenging for the Board to determine whether or not the first spouse has an interest inthe SBP, which also could be why the FSM did not update his election after getting adivorce nor when he re-married.  The Board determined there is insufficient evidence togrant relief.

2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

Except for the correction addressed in Administrative Note(s) below, the Board found 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. 




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. 


ADMINISTRATIVE NOTE(S): 

1.The FSM is authorized the Korea Defense Service Medal.

2.The following document is sufficient to justify correction of the DD Form 214 withoutaction by the Board:  DA Form 2-1 (Personnel Qualification Record - Part II), dated19 April 1984 reflects his service in Korea from 8 June 1963 through 26 June 1964.

3.Correct the applicant’s DD Form 214, dated 30 September 1984, to add the awardshown in paragraph 1 above.  Provide the applicant with a copy of the corrections and
the medals and citations, as applicable.  Please record the corrections in the FSM’s official military personnel record.  

REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Public Law-425, the SBP, enacted 21 September 1972, provided that militarymembers on active duty could elect to have their retired pay reduced to provide for anannuity after death to surviving dependents.  However, surviving children are onlyentitled to SBP payments until reaching age 22 in certain cases.  Changes in SBPoptions are not authorized except in specific instances, or authorized by law.  Electionsare made by category, not by name; An election to decline to participate in the SBPmust be made prior to the effective date of retirement or else coverage automaticallydefaults to full spouse (or child only coverage, if applicable) coverage.

3.Public Law 99-145, enacted 8 November 1985, permitted a previously participatingretiree upon remarriage to elect not to resume spouse coverage or to increase reducedcoverage for the latter spouse (requiring a payback with interest of SBP premiums priorto first anniversary of remarriage).  Changes must be made prior to the first anniversaryof remarriage or else the previously suspended coverage resumes by default on the firstday of the month following the first anniversary of the remarriage, with costs owed fromthat date.

4.DODI 1332.42  (Survivor Annuity Program Administration)  In the case of a membernot making an election within 1 year following remarriage, the new spouse shall becomean eligible beneficiary in accordance with the provisions of paragraph 6.c. of thisenclosure as though the member had made an election.  Coverage for the new spouseshall resume at the level in effect prior to the remarriage.  Costs shall accrue upon thefirst anniversary of the marriage. The amount of any unpaid costs shall be treated as adebt subject to collection with interest.

5.Public Law 97-252, the Uniformed Services Former Spouses Protection Act(USFSPA), dated 8 September 1982, established SBP for former military spouses.  Thislaw also decreed that state courts could treat military retired pay as community propertyin divorce cases if they so chose.  It established procedures by which a former spousecould 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 FSM’s residence in the state (other than pursuant to military orders), domicile in the State, or consent. 
 
6.  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 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. 
 
7.  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. 
 
//NOTHING FOLLOWS//