MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 February 2000                  
	DOCKET NUMBER:   AR1999028673

	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:  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.

APPLICANT STATES:  That the divorce decree stated she would receive the SBP and he would make all the arrangements to see that she did.  She was not aware of any paperwork that she should have filed.

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

After having had prior service in the Army National Guard and the U. S. Army Reserve, he enlisted in the Regular Army on 19 November 1958.  He retired on  1 November 1975.  At that time he elected spouse only SBP coverage.

The FSM and the applicant divorced on 1 March 1991.  The divorce agreement states in pertinent part “…the Husband agrees to make the Wife the beneficiary of one-half of his said pension entitlement upon his death.  He shall do all things necessary to allow her to receive the survivor’s benefits.”

The FSM remarried on 7 June 1991.  He died on 30 March 1999.

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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

Public Law 97-252, 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 1450(f)(2) 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.  When the FSM and the applicant were divorced on 1 March 1991, the divorce agreement stated that he agreed to make the applicant the beneficiary of his pension entitlement upon his death and that he would do all things necessary to allow her to receive the survivor’s benefits.

2.  The evidence of record shows the FSM did not change his SBP to former spouse coverage as directed by the divorce decree.  However, attorneys for the applicant should have known that federal law clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made if the member failed or refused to make the required change. The law also provides, however, 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. 

3.  The Board agrees with the applicant that an injustice occurred.  However, the lawful beneficiary of the FSM’s SBP is currently drawing the SBP annuity.  Absent a statement from the FSM’s second spouse asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

4.  Regrettably, 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	AR1999028673	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.