MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  18 August 1999
	DOCKET NUMBER:   AR1999020921

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward L. Williamson		Member	
	Ms. Sherri V. Ward		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:  As the surviving spouse of the deceased former service member (FSM), in effect, that she be entitled to Survivor Benefit Plan (SBP) annuity as a result of the FSM’s election for spouse coverage.

APPLICANT STATES:  In effect, that the FSM elected SBP coverage for her, therefore  his election should be upheld.

In support of her request, the applicant submitted a number of documents including a copy of the FSM’s SBP election dated 23 October 1994; a copy of the FSM’s death certificate; a copy of the FSM’s former spouse’s death certificate; a copy of the applicant’s marriage license and certificate; a copy of a Defense Finance and Accounting Service (DFAS) letter acknowledging the FSM’s failure to make a voluntary SBP election on behalf of his former spouse; and a copy of a DFAS letter approving the FSM’s former spouse’s deemed election for SBP. 

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

He initially entered military service in the Army of the United States on 23 November 1948.  He was retired from active service in the Regular Army in the rank of staff sergeant on 31 December 1968 after completing 20 years, 1 month and 9 days of creditable service.

FSM’ s records showed that the court order mandated SBP for his former spouse on 29 June 1993.  The former spouse made a deemed election for SBP on 9 March 1994 for which DFAS approved retroactively to 1 July 1993. The FSM married the applicant on 12 October 1994 and elected SBP coverage for her on 23 October 1994.  The FSM died on 1 September 1997.

In the processing of this case, the staff of the Board obtained an advisory opinion (COPY ATTACHED) from the U.S. Total Army Personnel Command, Chief, Army Retirement Services, stating, in effect and in pertinent part, that in the absence of government administrative error, SBP elections are permanent and irrevocable and the surviving spouse’s request to receive SBP annuity should be disapproved.  The rationale for recommending disapproval included that:

	(1)  The FSM participated in SBP with his former spouse until their divorce in June 1994 with continuation of SBP under court ordered former spouse coverage established from her deemed election request;

	(2)  FSM’s former spouse died on 31 March 1997 at which time SBP participation stopped based on the vacation of the court ordered former spouse coverage precipitated by her death; and that 

	(3)  At the time of death of the FSM’s former spouse, federal law specified that a retiree could revert to spouse coverage only if the death of the former spouse or amendment to a court occurred within one year of the retiree’s remarriage.  Since the former spouse’s death did not occur during the first year of the retiree’s remarriage, the retiree could not revert to spouse coverage thereby make the applicant an eligible beneficiary. 

In her rebuttal to the advisory opinion, counsel stated on her behalf, in effect, that the advisory opinion vaguely mentioned the applicable federal law; and that according to Title 10 United States Code (USC), Section 1450(f)(1)(C), the death of the FSM’s former spouse allowed the FSM to pursue SBP coverage for his current spouse and the law governing the one year rule to change SBP coverage did not apply in this case.

In an effort to clarify the legal position stated in the initial advisory opinion and address counsel’s argument, the staff of the Board obtained a second advisory opinion from the Army Review Boards Agency, Legal Advisor (COPY ATTACHED).  The second opinion stated, in effect and pertinent part, that Title 10 USC, Section 1448(a)(5)(B) applies in this case which refers to the limitation on the change of beneficiary when former spouse coverage is in effect; and that the provision of law to which counsel referred to in his argument did not take effect until 18 November 1997, after the death of the FSM.  Therefore, according to the law in effect during his lifetime, the FSM was prevented from changing his SBP election from former spouse to spouse coverage.

On 29 June 1999 the staff of the Board provided a copy of the second advisory opinion to the applicant for her comment or rebuttal.  The applicant did not reply to advisory opinion within the allotted time frame of 30 days.

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(s), it is concluded:

1.  The applicant’s request is not warranted when the evidence of record is considered.

2.  The Board concludes that according to the applicable laws in effect during his lifetime, the former service member was not able to legally change his Survivor Benefit Plan election from former spouse to spouse coverage.  Therefore, his surviving spouse is not legally eligible for SBP annuity.

3.  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.

4.  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

__RO___  __EW____  __SW___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020921	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990818	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  301	128.1800.000	
2.		
3.		
4.		
5.		
6.