MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 February 2000                   
	DOCKET NUMBER:   AR1999028737

	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. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		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 and child Reserve Component Survivor Benefit Plan (RCSBP) coverage.

APPLICANT STATES:  That the FSM failed to notify her or consult with her with regard to the RCSBP when he received his notification of eligibility to receive retired pay at age 60 (his 20-year letter).  According to the Defense Finance and Accounting Service (DFAS), he failed to return the election form.

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

He was born on 6 February 1956.  After having had prior active duty in the Regular Army, he entered the U. S. Army Reserve.  He and the applicant married on 22 June 1983.  Their son was born on 17 June 1984.

The FSM and the applicant divorced on 21 May 1997.  The divorce decree states in pertinent part “It is therefore ordered and decreed that ______ shall immediately designate ______, _______’s former spouse, beneficiary under the Armed Services Survivor Benefit Plan and that ______ shall continue to remain beneficiary as _______’s former spouse under that plan…”  It goes on to state “…the child of the marriage is eligible to receive health care and other benefits as a dependent…is ordered and decreed to keep and maintain in current status and deliver to ______ the identification card(s) and any other forms necessary for the child of the marriage to be provided health care…”

The FSM’s 20-year letter is dated 28 May 1998.  According to DFAS, he failed to return his SBP election form.

On 10 February 1999, the FSM died.

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.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 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 active 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.  The Board is cognizant of the fact the FSM failed to adhere to the court’s order concerning the SBP (which ordered only former spouse coverage, not former spouse and child coverage).  However, the applicant also was entitled by law to request a deemed election and she has provided no evidence to show that she did so within the one-year-after-date-of-divorce time limit prescribed by law.

2.  Federal law does not require a service member to notify a former spouse of his SBP election/declination of election.  

3.  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

__cmf___  __jea___  __le____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028737	
SUFFIX		
RECON		
DATE BOARDED	20000202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.