MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 February 2000                   
	DOCKET NUMBER:   AR1999028643

	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. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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 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 the divorce decree stated she should be his SBP beneficiary but the FSM failed to make the change.  She is currently remarried but would like this correction made so she would be entitled to his SBP annuity should her present marriage end.

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

He entered active duty in April 1948 and retired on 30 June 1971.  

The FSM elected SBP, spouse and child coverage, on 1 June 1973 during the initial Open Season.

The FSM and the applicant divorced on 7 February 1985.  The divorce decree states in pertinent part “…also grants to Petitioner/Wife the status of irrevocable beneficiary of the Survivor’s Benefit Plan which he currently has in existence. …shall take all action to assure such status and shall not perform any act to frustrate said status.  Upon completion of application…he shall provide proof of same.”

On an unknown date the FSM remarried.  He died on 24 April 1999.  Spouse coverage was in effect at the time he died; however, the Department of Veterans Affairs had determined that the FSM’s death was service-connected and she is currently drawing Dependency and Indemnity Compensation (DIC).  To remain eligible for DIC a surviving spouse must not have remarried.

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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.

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, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

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 (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.  At the time the FSM and the applicant divorced, state courts were not permitted to order SBP coverage.  Such a change would have had to have been a strictly voluntary action on the part of the FSM, which change the evidence of record shows he did not make.  The applicant could have requested a deemed election provided the FSM agreed to provide former spouse coverage; however, the Board recognizes that the FSM probably would not have agreed to provide such coverage. 

2.  In addition, since the FSM died with spouse coverage in effect, his legal spouse at the time of his death is the lawful beneficiary of his SBP.  Although she is currently drawing DIC instead of the SBP annuity, if in the future she should lose her DIC eligibility it is possible she would regain her eligibility for the SBP annuity.  The Board will not take any action to prevent the lawful beneficiary from becoming eligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

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

__vbc___  __jps___  __klw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028643	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.