MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November 1998                   
	DOCKET NUMBER:   AC98-05693

	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:

	Mr. James E. Vick		Chairperson	
	Ms. June Hajjar		Member	
	Mr. Thomas D. Howard, Jr.		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:  In effect, that the Survivor Benefit Plan coverage of her former spouse, a former service member (FSM) be changed to “children only” and that her debt due to erroneous receipt of the SBP annuity be waived.

APPLICANT STATES:  That she had told the Defense and Accounting Service (DFAS) that she and the FSM were divorced but was told because they had been divorced for less than one year she was still entitled to the SBP.  She has a 3-year old child, the FSM’s son, who is autistic.  She feels the FSM would have wanted the SBP to protect his child.

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

He enlisted in the Regular Army on 28 September 1976.  He retired on 26 March 1993 by reason of a physical disability for an eye injury at a 30 percent disability rate.

The FSM’s SBP election form is not available.  He apparently elected “spouse only” coverage (his DD Form 41, Record of Emergency Data shows that he had one step-daughter, born on 27 February 1979, as of 3 November 1992).

The applicant and the FSM apparently had a child after he retired.  The child’s birth certificate is not available.  If the child was born after the FSM retired, there is no evidence the FSM attempted to add the child coverage to his SBP.

The applicant and the FSM were divorced on a date unknown.  The divorce decree is not available.

The FSM died on 1 May 1995.  SBP premiums had continued to be taken out of the FSM’s pay until his death.

DFAS had apparently erroneously paid the applicant an SBP annuity and later demanded it be paid back as a debt.  She had applied to DFAS for a waiver of the debt, but the request was returned to her without action and advising her to apply to this Board first.

The applicant failed to respond to two letters and a phone call requesting additional information/documentation.

Public Law 972-245, 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 97-252, dated 8 September 1982, established SBP for former military spouses.

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 (SEE ATTACHED) was obtained from the Army Retirement Services.  The opinion noted that there was no evidence of government administrative error.  The opinion noted that neither the DFAS Cleveland nor the Denver centers could locate the FSM’s files and so their advisory opinion was made without the benefit of seeing the FSM’s actual SBP election form.

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

1.  The FSM retired by reason of a physical disability on 27 March 1993.  At that time he elected SBP coverage for “spouse only.”  He had one step-daughter at the time.

2.  On an unknown date another child was born.  There is no evidence to show the FSM attempted to add that child to his SBP coverage.

3.  On an unknown date, the applicant and the FSM divorced.  Premiums continued to be taken out of the FSM’s pay although there is no evidence that the divorce decree ordered him to convert to “former spouse” coverage and no evidence that the FSM voluntarily requested to so convert his coverage.

4.  The FSM died on 1 May 1995.

5.  The applicant did receive an SBP annuity, which DFAS later declared was erroneous and a debt owed to the government.  She applied to DFAS for a waiver of debt.  The application was returned to her without action and the advice for her to apply to this Board first.  She could reapply if the Board denied her relief.

6.  The applicant failed to respond to two written and one telephonic request for more information/documentation.

7.  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

JEV_____  JH______  TDH_____  DENY APPLICATION

						Loren G. Harrell
						Director