MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 November 1999                   
	DOCKET NUMBER:   AR1999025218

	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. Calvin M. Fowler		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Ted S. Kanamine		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:  In effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage.

APPLICANT STATES:  That she was the FSM’s spouse at the time he retired.  She was never notified of any change in SBP beneficiary and she believes she is entitled to all benefits which were in effect at the time the SBP was enacted.  She includes the marriage certificate, retirement order, DD Form 214, divorce decree, and death certificate as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no contention.

EVIDENCE OF RECORD:  The FSM’s military records are not available.

The FSM enlisted in the Regular Army in or around 1950.  He and the applicant married on 17 March 1951.  The FSM retired on 1 May 1972.  The FSM’s SBP election certificate is not available.  The FSM and the applicant divorced on        26 January 1982.  There is nothing in the provided divorce document that mentions the SBP.  The FSM died on 12 February 1990.

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.  An Open Enrollment period was provided for those members already retired.  Elections were made by category such as spouse only, children only, or spouse and children and, once made, were irrevocable. 

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. 

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 applicant contends that the FSM elected spouse coverage.  Unfortunately, there is no evidence to show that the FSM ever elected SBP coverage or that the Defense Finance and Accounting Service collected SBP premiums from the FSM.  There is no evidence to show that the FSM elected former spouse coverage after their divorce.  Former spouse coverage was not even authorized by law until September 1982 and could not be ordered by state courts until November 1986.  

2.  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

__cmf___  __jns___  __tsk___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999025218	
SUFFIX		
RECON		
DATE BOARDED	19991117	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.