MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 December 1999                   
	DOCKET NUMBER:   AR1999027920

	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. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Barbara J. Ellis		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 his Survivor Benefit Plan (SBP) election be changed to former spouse coverage.

APPLICANT STATES:  That his former wife was given the wrong information concerning what to do to continue to be covered by the SBP and so the proper forms were not completed on time.

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

He entered active duty in June 1947 and retired on 1 January 1970.  

On 1 January 1973, during the initial open season, the applicant elected to participate in the SBP for spouse coverage.  

The applicant divorced on 10 February 1997.  The Marital Settlement Agreement states in pertinent part “…Husband names Wife the party who will receive the Survivors Benefit if Husband predeceases Wife.”  The applicant remarried on    26 June 1998.  His SBP coverage was changed to “no beneficiary” effective      22 October 1998.  (There is no available evidence to show that this was done at his request.)  On 25 March 1999, he was paid an SBP cost refund. Spouse coverage has not been restarted.  On 11 May 1999, the applicant completed DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage.

Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP 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.  It declared a 12-month open season for those members who retired prior to enactment of the law.

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

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.

Title 10, U. S. Code, section 1448(a)(6) provides that a person with spouse coverage who remarries may elect not to provide coverage under the SBP for the person’s spouse if such an election is made within one year after the person’s remarriage.  The person’s spouse shall be notified of that election.

Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

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 concludes that an injustice has occurred in this case but will not take corrective action because that action would cause another injustice.

2.  Although the applicant does not explain why he did not make a former spouse election within one year of the date of his divorce instead of leaving it to his former spouse to make a deemed election, it appears to now be his intent to comply with the Marital Status Agreement.  

3.  However, there is no evidence to show the applicant elected through the procedure prescribed by law not to provide spouse coverage within one year of his remarriage; therefore, his current spouse automatically acquired spouse coverage on the first anniversary of his remarriage.  To grant the applicant’s request at this date would constitute an unconstitutional taking from his current spouse.

4.  Absent consent of the current spouse for the applicant to provide for former spouse coverage in lieu of spouse coverage, the only recourse is to return to the courts for an update of the marital agreement.

5.  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

__svw___  __vbc___  __bje___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027598	
SUFFIX		
RECON		
DATE BOARDED	19991202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.