MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 2000                   
	DOCKET NUMBER:   AR1999028424

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 and that she be provided a military identification card.

APPLICANT STATES:  That the reason for their separation and divorce was the FSM’s molesting of their 13-year old daughter.  After the FSM’s death in 1993, she was told that he had opted out of the SBP.  The Army was required by law to notify her of his election to opt out but they mailed the notification to the FSM.

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

He enlisted in the Regular Army on 18 September 1964.  On 13 October 1967, the FSM and the applicant married.  On 27 November 1984, he elected to participate in the SBP for spouse only coverage.  He retired on 1 January 1985.

Because of the passage of Public Law 99-145, the FSM was offered the opportunity to withdraw from the SBP.  (Although the letter from Retired Pay Operations is dated 20 March 1985, this is apparently a typographical error and should probably have read 20 March 1986.)  The FSM was informed that if he elected to withdraw, Retired Pay Operations would notify his beneficiary. 

On 31 October 1986, the FSM elected to withdraw from the SBP and informed Retired Pay Operations that the applicant resided at his address.  Retired Pay Operations then mailed a letter dated 11 December 1986 to that address notifying the applicant that the FSM had withdrawn from the SBP.

On 21 October 1987, the FSM and the applicant divorced.  The divorce decree awarded the applicant 44.69 percent of the FSM’s retired pay but makes no mention of the SBP.  On 25 July 1989, apparently as a result of the FSM failing to obey the directives in the original decree, the court ordered the Clerk of the Superior Court to sequester through an involuntary assignment the FSM’s military retirement (pay).  No mention was made of the SBP.  

On 22 January 1993, the FSM died.

In 1995, the applicant took her case to the U. S. Court of Federal Claims.  The Court held that the U. S. Army failed to give the required notice to her concerning the FSM’s intent to withdraw from the SBP.  However, because no order for former spouse SBP coverage was entered by the state court, no deemed election could have been made by the applicant and therefore the Court of Federal Claims concluded she was not eligible to receive SBP benefits as a 

former spouse.  The U. S. Court of Appeals affirmed the decision of the Court of Federal Claims, finding that the applicant was not entitled to SBP benefits either as a widow or as a former spouse.

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.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

Public Law 98-525 (the pertinent portion of which is also known as the Thurmond amendment), enacted 19 October 1984, eliminated or reduced the Social Security Offset for surviving spouses entitled to Social Security in their own right. It was repealed before it took effect by Public Law 99-145.

Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  This law also repealed the Thurmond amendment and permitted members who retired between 19 October 1984 and 8 November 1985 to withdraw from the SBP with a refund of premiums.  The implementing guidance associated with this law directed that “if any member withdraws from participation for a spouse or spouse and child, that member’s spouse will be notified in the same manner, appropriately documented, as if the member had elected not to participate in the Plan upon retirement.” Since in the 1984 – 1985 time frame concurrence was not required for retiring members, it would not apply to already retired members.

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.

Commander, U. S. Total Army Personnel Command military personnel message 98-157 provided guidance on former spouse benefits.  If the marriage lasted 20 years and more than 15 but less than 20 years of the marriage overlapped 20 years of creditable service and the date of divorce was on or after 1 April 1985 but before 30 September 1988, the former spouse will be entitled to medical privileges only, limited to 2 years from date of divorce.

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 initially elected to participate in the SBP for spouse coverage upon his retirement on 1 January 1985.  When he initially made his SBP election, the Thurmond amendment had been passed and he was briefed on the SBP in light of the future effects of this amendment.  When the amendment was repealed without ever going into effect, he was offered the opportunity to withdraw from the SBP under the same circumstances as had been in effect at the time of his retirement.  Spousal notification, not spousal concurrence, was in effect at the time of his retirement.  

3.  Although the Court of Federal Claims admonished the Army for failing to properly notify and counsel the applicant about the FSM’s withdrawal from the SBP, the Court also found that the state court had not ordered former spouse SBP and so determined she was not eligible to receive SBP benefits as a former spouse.  The Board also notes that the state court could not have ordered former spouse coverage since Public Law 99-145 allowed the FSM to show he had not elected spouse coverage at retirement.

4.  It appears the applicant would have met the 20-20-15 rule for other military benefits (and a military identification card).  However, those benefits would have entitled her to medical privileges only, limited to 2 years from date of divorce.  Her benefit entitlement ended on 21 October 1989.

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

__mkp___  _gdp____  __tbr___  DENY APPLICATION

Karl F Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028424	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.