MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-08522
				   AR1999015793

	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	
	Mr. Vic Whitney		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 she be entitled to her deceased husband’s survivor benefit plan (SBP) payments.

APPLICANT STATES: That as the legal spouse of the deceased former service member (FSM) she is the surviving spouse as evidenced by her continued enrollment in the Defense Enrollment Eligibility Reporting System (DEERS).  Her husband’s death certificate shows that his martial status was divorced at the time of his death.  She has obtained a copy of her husband’s divorce decree of 18 August 1977 and it is from a different woman than herself.

EVIDENCE OF RECORD:  The records of the deceased former service member show:

He enlisted and entered active duty on 26 August 1946.  He was separated from active duty on 21 November 1951 and reenlisted on 19 February 1952.  A record of marriage in the FSM’s records show that he and the applicant were married on 7 August 1954.  He continued to serve on active duty until his retirement on 31 January 1972.

A certificate of death from the State of Colorado shows that the FSM died on 24 December 1987.  Block 10 of the certificate shows his marital status as “Divorced” with no surviving spouse.

The applicant has provided a copy of a State of Colorado divorce decree which indicates that the FSM and a woman other than the applicant were divorced effective 18 August 1977 with custody of a child born being awarded to the woman.  There is no record of marriage or birth of a child in the FSM’s available record prior to his retirement on 31 January 1972.

A memorandum from an Army personnel service company in Europe, dated 31 May 1991, states that the applicant is shown in DEERS as the spouse of the FSM.  No other former wives or other dependents are listed as eligible family members.

In the processing of this case an opinion (COPY ATTACHED) was obtained from the HQDA, Army Retirement Services.  The opinion states that the FSM was offered the option of enrolling the applicant in SBP during the period 21 September 1972 to 20 March 1974.  There was no record that the FSM ever took action to enroll any eligible family member in SBP.  The applicant’s response to the unfavorable advisory opinion did not include any evidence to indicate that the applicant had or intended to enroll her in SBP.

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 upon their death to surviving eligible dependents.
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.  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.  The evidence of record shows that at the end of the time period set aside for enrollment in the SBP the FSM took no action to provide coverage for the applicant.

3.  There is no evidence of administrative error on the part of the Government.  Therefore, 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	AC98-08522/AR1999015793	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.