MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9808565

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 she be granted a Survivor Benefit Plan (SBP) annuity.  

APPLICANT STATES:  Her deceased former husband, a former service member (FSM), had elected “spouse only” coverage upon his eligibility for retirement.  The divorce decree specified that she would be retained as the SBP beneficiary.

EVIDENCE OF RECORD:  The FSM’s military records show he was born on    27 March 1916.  He initially enlisted in the Army National Guard on 2 October 1933.  He and the applicant were married on 4 August 1941.  On 5 December 1975, upon applying for retired pay at age 60, he elected “spouse only” coverage under the SBP.  The FSM was retired on 27 March 1976, in pay grade O-4, upon reaching age 60.

On 27 June 1990, the FSM and the applicant divorced.  The divorce decree states the applicant would be retained as the FSM’s SBP beneficiary.

In July 1990, the FSM remarried.

On 15 December 1993, the FSM died.

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

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.

The Headquarters, Army Retirement Services Office recommended that the applicant’s request be disapproved as there was no evidence of government administrative error upon which to grant relief.  The state court ordered the FSM to convert his spouse coverage to “former spouse;” however, he failed to take action to do so nor did his former spouse exercise her right under federal law to make a written request for a deemed election.  Therefore, his spouse coverage was suspended and resumed upon his remarriage.  The FSM’s second spouse was his eligible beneficiary upon his remarriage.  She has since remarried, it has been suspended once again (her last annuity check was received in December 1994), but it is resumable should her current marriage end.  This opinion does note that the SBP was created to provide continued financial support to military members’ surviving spouses who had accompanied and supported them during their military careers.  The applicant is such a military spouse.  

The applicant rebutted this opinion.  She states that she supported and accompanied the FSM during his entire military career and for the preponderance of his retired military life.  She is currently 80 years old, not employable, seriously ill and insurance does not cover her medications.  She states that the FSM’s second spouse signed over the SBP checks that she received prior to her remarriage in accordance to the divorce decree and did so voluntarily, realizing her greater need.  She encloses a note from his second spouse stating that as long as she is eligible to receive them and the applicant is eligible to receive them according to the divorce decree, she (the second spouse) would sign the benefits over to her.  The note also states that the FSM did inquire about keeping the applicant as the named beneficiary, but was told he had missed the one-year deadline for changing his SBP.

An advisory opinion was obtained from the legal advisor to the Army Review Boards Agency.  The opinion noted that the FSM’s second spouse is the current beneficiary under the SBP.  Although the payments to her have been suspended since she has remarried, she still has an economic interest in future payments should her current marriage cease.  Although in the past the second spouse apparently turned over her SBP payments to the applicant, there was no evidence that she had waived all future interests to benefits under the SBP.

This advisory opinion was forwarded to the applicant for rebuttal.  She responded with a letter from the FSM’s first spouse, wherein she agreed to waive future interests to benefits under the SBP during the lifetime of the first wife.  She reserved, in acknowledging the applicant’s request, the right to seek SBP benefits upon her death.

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

1.  The evidence of record shows the FSM elected “spouse only” SBP coverage upon his eligibility for retirement.  The divorce decree stated the applicant would be retained as his SBP beneficiary; however, neither he nor the applicant took the necessary steps to change SBP coverage to “former spouse.”

2.  The FSM’s second spouse was the eligible SBP beneficiary at the time of his death.  A statement from the second spouse notes that the FSM did inquire about keeping the applicant as the beneficiary, but he apparently inquired too late to effect the change.  The second spouse did receive the SBP annuity, but apparently turned over the checks to the applicant.  The second spouse has remarried, is under age 55, and her SBP annuity is in a suspended status, but resumable should her current marriage end.
3.  The applicant states that the second spouse turned over her SBP checks to the applicant in voluntary compliance with the divorce decree and provides evidence that at least twice she did do so.  

4.  The Army Retirement Services Office’s advisory opinion notes that the FSM’s second spouse was the eligible beneficiary upon his death and that, although currently remarried, her eligibility could resume should her marriage end before age 55.

5.  The legal advisory opinion notes that the second spouse is the legal SBP beneficiary.  Although in the past she had turned over her SBP payments to the applicant, there was no evidence that she had waived all future interests to benefits under the SBP.

6.  The second spouse provided a letter stating she agreed to waive future interests to benefits under the SBP during the lifetime of the applicant.  She specifically did not waive all future claims to the SBP.

7.  The Board agrees with the Army Retirement Services Office statement that the SBP was established to provide continued financial support to the spouse who accompanied and supported the FSM during his military career.  The Board is extremely sympathetic to the applicant’s plight.  However, there was no government error.  If the Board granted the applicant the relief requested, it would forever thereafter prevent the FSM’s second spouse, his legal SBP beneficiary, from claiming the benefits and she has not waived those rights.

8.  In view of the foregoing, there appears to be 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director