MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-05021
				   AR1998012459

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the Reserve Component Survivor Benefit Plan (RCSBP)/SBP election of her deceased former spouse, a former service member (FSM), be changed from “child only” to “former spouse and child.”

APPLICANT STATES:  The FSM intended to comply with the divorce court order naming her as the beneficiary of his SBP.  He erroneously changed his election from “spouse” to “child only” believing he was complying with the order.

EVIDENCE OF RECORD:  The FSM's military records show:

The FSM was born on 28 April 1935.  He enlisted in the Army National Guard on 12 October 1953.  

On 28 June 1979, apparently upon receiving notification that he was eligible for retired pay at age 60 (20-year letter) the FSM completed DD Form 1883, SBP Election Certificate.  He had elected “spouse and children” coverage, Option C (immediate coverage).

On 2 April 1985, the FSM was placed on the retired list, in pay grade W-2, after completing 31 years of creditable service.

On 24 October 1994, the FSM applied for retired pay by completing DD Form 2656.  On this form he listed the applicant as his spouse but checked the block “elect coverage for the person named in item 30 who is my former spouse and dependent child….”  He entered “N/A” in item 30.

On 17 November 1994, the FSM’s divorce became final.  On 22 December 1994, a Qualified Domestic Relations Order (QDRO) apparently adjusted the property settlement.  In part, it reads “…However, the Participant is hereby ordered to elect the survivor annuity option as set forth in sub-paragraph (3) below.”  Sub-paragraph (3) is not available.

On 13 August 1995, the FSM wrote to the Defense Finance and Accounting Service (DFAS) asking that his DD Form 2656 be changed.  He stated that was his third request.  DFAS forwarded it on to the Army Retirement Services to determine the validity of his request.  On 19 December 1995, the Army Retirement Services requested the FSM answer some questions before making a determination.

On 30 January 1996, the FSM responded.  He stated he was told at the time he initially completed the DD Form 2656 that since his divorce was not yet final he had to keep his spouse on for SBP.  He was told he could change it after his divorce became final.  At the time he received his 20-year letter, he was still married and felt his wife should receive his SBP.  Since then she divorced him, he wants SBP coverage changed to “children only,” and his divorce decree only stated that she got 50 percent of his retirement check, so he does not feel he needs to have her as an SBP beneficiary any longer.

On 28 May 1996, the Army Retirement Services requested that DFAS pay the FSM a refund for the spouse portion of his SBP election retroactive to the date of his divorce.

The FSM died on 31 October 1996.

Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

Public Law 95-397, the RCSBP, dated 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP) to provide an annuity for their survivors should they die before reaching age 60.

Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services.  The opinion recommended that the applicant’s request be disapproved as there was no apparent government administrative error to warrant the change.

The applicant rebutted this opinion.  She stated that she assumed when she applied for her share of the FSM’s pension she had included the QDRO paperwork also.  She states the FSM mistakenly changed his SBP coverage from “former spouse” to “children only.”  

A further advisory opinion was obtained from the Legal Advisor to the Army Review Boards Agency.  The applicant responded to this advisory opinion through her Congressional Representative.  Her Representative stated that the record shows that the applicant was receiving retirement benefits within a year of their divorce and that she had deemed election for both SBP and retirement through correspondence, including submission of the QDRO, at the same time.  The QDRO that the Representative attaches as substantiating documentation is the same QDRO as the applicant had attached, that references a “sub-paragraph (3) below” but does not include a page which has a sub-paragraph (3).  The Representative also states that the request is on file with DFAS and apparently submits as substantiating documentation a Direct Deposit Sign-up Form.  Block F of that form checks the type of payment as “Mil. Retire,” not “Mil. Survivor.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.	In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.	At the time the FSM received his 20-year letter, he was still married and he elected RCSBP coverage for “spouse and children.”

3.	At the time the FSM applied for retired pay, he was in the process of getting a divorce.  He had been told that he must keep his then still-spouse as his SBP beneficiary but that he could change his election after the divorce became final.  As a result of this guidance, he made some confusing entries/elections on the DD Form 2656.

4.	When the FSM was queried on what exactly were his intentions, he clearly stated his intention was not to make his now former spouse his SBP beneficiary.

5.  The applicant states she assumed she submitted the QDRO at the time she applied for her half of the FSM’s retired pay.  Since the documentation the applicant claims is proof she had made a deemed SBP election (submitted to the Board both by her and through her Representative) contains no reference to what survivor annuity option the FSM made, DFAS could not have taken any kind of action based upon that document.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KJN___  __FNE___  ___JPI__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05021/AR1998012459	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.