MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 September 1999                   
	DOCKET NUMBER:   AR1999026344

	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. Melinda M. Darby		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Van B. Cunningham		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 Survivor Benefit Plan (SBP) “former spouse” coverage.

APPLICANT STATES:  That she was married to the FSM for 18 of his 21 years of service.  They divorced shortly after he retired.  Legal services at Fort George G. Meade, MD did not give her any guidance on her entitlements prior to the divorce.  The FSM did not inform the courts of the entitlements at the time of the divorce.  He remarried several years after he retired.  Supporting evidence is as listed on the DD Form 149.

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

He was inducted into the Army on 9 March 1959.  He and the applicant married on 3 August 1963.  He retired on 1 May 1980.  At the time of his retirement, he elected to participate in the SBP for “spouse and children” coverage.  

The FSM and the applicant divorced on 26 October 1982.

The FSM died on 28 February 1999.

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, dated 8 September 1982, established SBP for former military spouses of retiring members.

Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  Insurable interest option was authorized for beneficiaries following divorce if previously covered under the “spouse” option.

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.  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.  Legal services at Fort Meade, MD did not give the applicant any guidance on her entitlements to SBP at the time of her divorce because former spouses had no such entitlement at that time.  The law establishing SBP for former military spouses of retired members did not come into effect until 24 September 1983, almost a year after her divorce.  

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

__mmd___  __svw___  _vbc____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026344	
SUFFIX		
RECON		
DATE BOARDED	19990916	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.