MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 January 2000                   
	DOCKET NUMBER:   AR1999028644

	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. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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) coverage be changed to former spouse coverage.

APPLICANT STATES:  That he was not aware he needed to file an SBP election statement requiring former spouse coverage within one year of his divorce.  He just discovered the need to do so.

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

He was born on 8 February 1925.  After having had prior enlisted service, he was appointed a commissioned officer in the U. S. Army Reserve in March 1950.  He apparently was assigned to the Retired Reserve in 1973.  He applied for retired pay in 1984 and at that time elected SBP spouse only coverage, full base amount.

Effective 24 November 1989, the applicant and his spouse divorced.  The divorce decree states in pertinent part “The election now in existence and providing for a survivor benefit from such Army pension to petitioner shall be irrevocable on the part of the respondent and the respondent is restrained and enjoined from making any such change in the retirement option…”

The applicant remarried around July 1993.

Public Law 95-397, the Reserve Component SBP, 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.  If a reservist fails to elect to participate within 90 days of receiving his 20-year letter or elects to decline enrollment, he or she may choose at age 60 whether to start SBP participation.

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(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.

The Defense Finance and Accounting Service has verified that the applicant is currently paying SBP spouse premiums and it appears he has always paid those premiums.

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.  After his divorce, the applicant failed to take the proper steps to change his SBP election to former spouse within the one-year time period prescribed by law, possibly because of the wording of the divorce decree (“…respondent is restrained and enjoined from making any such change in the retirement option…”).  There is no evidence to show his former spouse attempted to request a deemed election.

3.  It appears the applicant has continuously paid spouse SBP premiums through the present time.  When he remarried, 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 former spouse may have to bring an action in civil court to force the applicant and his wife to comply with the court decree.  If he secures his wife’s notarized consent to the SBP beneficiary change, he may reapply to the Board.

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

__inw___  ___sk___  __eja___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028644	
SUFFIX		
RECON		
DATE BOARDED	20000127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.