MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 October 1999                   
	DOCKET NUMBER:   AR1999018077

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Carol Jo Suiter		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 records of her deceased former spouse, a former service member, be corrected to show he elected Reserve Component Survivor Benefit Plan (RCSBP) former spouse coverage.

APPLICANT STATES:  That the FSM failed to assign a beneficiary prior to his death.  She was married to the FSM for 18 years and per the divorce agreement she is entitled to his retirement pay.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 18 December 1946.  He enlisted in the U. S. Army Reserve on 23 September 1965.  He and the applicant apparently married in 1966.

The FSM and the applicant divorced on 12 October 1984.  The settlement agreement states in pertinent part “The husband shall be entitled to a retirement from the United States Army Reserve beginning about December, 2011 and the husband hereby agrees to pay to wife one-third of each such payment unless she has remarried.”

The FSM was sent his notification of eligibility to receive retired pay at age 60 (his 20-year letter) on 3 December 1986.  There is no evidence to show he completed DD Form 1883, Survivor Benefit Plan Election Certificate at that time.

A Qualified Domestic Relations Order (QDRO) dated 16 September 1994 discusses the Delta Family-Care Retirement Plan financed by Delta Air Lines, Inc.  The military SBP is not mentioned.

The FSM died on 6 February 1997. 

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.  This Law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. 
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.

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 FSM and the applicant were divorced on 12 October 1984.  The settlement agreement stated that the FSM agreed to pay the applicant one-third of his retired pay (not a retirement annuity), which was authorized by law effective 8 September 1982.  (The law that permitted divorce courts to order SBP coverage was not enacted until 14 November 1986.)  Such a change would have been entirely voluntary on the FSM’s part.  The QDRO, which was entered into after the effective date of the law, only references the Delta Air Lines retirement plan, not the SBP.

2.  The Board is empathetic with the applicant’s situation, but 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

__rvo___  __rjw___  __cjs___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018077	
SUFFIX		
RECON		
DATE BOARDED	19991021	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.