MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 February 2000                   
	DOCKET NUMBER:   AR1999027938

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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” Reserve Component Survivor Benefit Plan (RCSBP) coverage.

APPLICANT STATES:  That she was not notified to make this change.  First the U. S. Army Reserve Personnel Command told her she was not eligible for the RCSBP, then told her she was, then told her again she was not.  Her son provided a statement that it was his understanding, from conversations with his father, that it was his father’s desire to retain the applicant as his RCSBP beneficiary.  He knew his mother and father had an amicable divorce and that neither of them remarried.  

EVIDENCE OF RECORD:  The FSM military records show:

He was born on 22 May 1944.  He enlisted in the Army National Guard in 1965.  He and the applicant married on 1 October 1967.  He transferred to the U. S. Army Reserve in 1976.  In March 1987, he received notification of his eligibility to receive retired pay at age 60 (his 20-year letter).  At this time, he elected to participate in the RCSBP for “spouse and children” coverage, option C, full base amount.  

The FSM and the applicant divorced on 11 June 1993.  The divorce decree does not specifically mention the SBP.

The FSM died on 1 June 1996.

The U. S. Army Reserve Personnel Command sent the applicant several contradictory letters concerning her eligibility for the RCSBP apparently based on a misunderstanding as to whether she was actually divorced from the FSM or only in the process of divorce.  The latest available letter, dated 28 April 1999, stated she was not eligible.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Elections are made by category, not by name.  An election, once made, is irrevocable except under certain conditions.

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 (without the member’s agreement) 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(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.  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.  The FSM elected RCSBP coverage in 1987.  The DD Form 1883 clearly refers to his “spouse and children” coverage and to the applicant as his “spouse.” Effective 11 June 1993, the applicant was no longer the FSM’s “spouse.”  The divorce decree did not specify that the FSM should continue to provide RCSBP coverage to the applicant.  Since the divorce decree did not award her the RCSBP, she could not have requested a deemed election.  The FSM could have voluntarily changed his coverage to “former spouse” but he did not take the necessary steps to do so.  As a senior non-commissioned officer, he should have known to go to an Army source, such as the nearest Retirement Services Office or the Defense Finance and Accounting Service, to obtain information on how to continue coverage for his then “former spouse.”  

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

__aao___  __clg___  __mw____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027938	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.