MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 November 1999                   
	DOCKET NUMBER:   AR1999024451

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Margaret V. Thompson		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 Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be changed to show he elected former spouse coverage.

APPLICANT STATES:  That she gave up the FSM’s retirement pay for the SBP to continue.  He continued to pay for SBP after their divorce.  He was not good at paperwork and he may not have known he had to change it over.

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

After having had prior enlisted service, he entered active duty as a U. S. Army Reserve Warrant Officer on 11 May 1966.  He retired from active duty on            1 August 1973.  At that time, he elected to participate in the SBP for a reduced amount.

On 1 November 1978, the applicant and the FSM divorced.  The settlement agreement stated in pertinent part “…Wife transfers and assigns to the Husband…all of her right to…Petitioner’s retirement entitlement through the United States Army, provided, however, that Petitioner retain Respondent as his beneficiary under the Survivors Benefit Program for as long as possible…”

On an unknown date, the FSM remarried.

The FSM died on 15 February 1999.  The spouse he was married to at the time of his death is drawing his SBP annuity.

Public Law 92-245, 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, 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 Board is empathetic with the applicant’s concerns, but she and the FSM divorced 4 years prior to the date the law authorized former spouse SBP coverage and 8 years prior to the time the law permitted state courts to order former spouse SBP coverage.  

2.  The FSM continued to pay spouse premiums until he died and his last spouse, the lawful beneficiary of his SBP, is currently drawing the SBP annuity. The Board will not take any action to prevent the lawful beneficiary from receiving those benefits. To do so would constitute an unconstitutional taking without due process of law.

3.  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

__inw___  __clg___  __mvt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024451	
SUFFIX		
RECON		
DATE BOARDED	19991110	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.