MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 February 2000                   
	DOCKET NUMBER:   AR1999028767

	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 spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That she and the FSM were divorced once and then remarried after he retired.  They were married for over 20 years total.  When he died after an accident in 1999, a casualty officer from Stuttgart, Germany told her she would get no SBP.  She could not believe he would leave her with nothing.  He was a good soldier and the Army was his life but in his private life he was not so dependable. 

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

After having had prior service, he reenlisted in the Regular Army on 6 November 1962.  

The applicant and the FSM married on 13 March 1965.  They divorced on            
1 December 1969.

The applicant remarried another woman on 7 July 1974.

On 13 August 1980, the FSM completed DA Form 4240, Data For Payment of Retired Army Personnel.  On that form he listed the applicant as his wife and beneficiary for unpaid retired pay.  He declined SBP coverage and the applicant signed in part IX acknowledging that she had been fully informed and counseled concerning the SBP options and that she understood the decision which the FSM had made.

On 1 October 1980, the FSM retired.

On 29 October 1980, the FSM divorced the other woman.

On 22 April 1981, the FSM and the applicant remarried.

On 14 January 1999, the FSM died.

Public Law 92-425, 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.

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 evidence of record shows the FSM declined SBP coverage at the time he retired.  It also appears the applicant fraudulently signed the DA Form 4240 as the FSM’s spouse, acknowledging she understood the FSM’s declination of the SBP, at a time she was not yet legally married to the FSM.  

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	AR1999028767	
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.