MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 May 2000                   
	DOCKET NUMBER:   AR2000035318

	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. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		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 changed his Survivor Benefit Plan (SBP) to natural person with insurable interest or child coverage.

APPLICANT STATES:  In effect, that the FSM’s divorce financial affidavit showed their son as his SBP beneficiary.  The divorce was in October 1997 and he died in December 1997 which did not give him much time to make the change.  She provides the financial affidavit and the child’s birth certificate as supporting evidence.

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

He enlisted in the Regular Army on 2 April 1979.  As a result of a vehicular accident his right leg was severely injured and he was permanently retired by reason of a physical disability on 3 April 1981.  At that time, he enrolled in the SBP for spouse only coverage.  His son was born on.  

The FSM and the applicant divorced in 1997.  The divorce decree is not provided.  The FSM’s financial affidavit lists the SBP under life insurance, face amount $5,000.00 with his son as beneficiary.  It shows “N/A” under retirement plans.

The FSM’s death certificate is not available.

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.  Elections, which are made by category, once made are irrevocable except in certain circumstances allowed by law.  A member who has no dependent child upon becoming eligible to participate in the SBP but who later acquires a dependent child may elect child coverage providing such an election is in writing and received by the Secretary concerned within one year after the date the member acquires that dependent child.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.

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 (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(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

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 retired, he had no dependent children and elected spouse coverage under the SBP.  When his son was born in 1987, he had one year in which to change his SBP coverage to spouse and child.  There is no evidence of record to show that he did so and the applicant provides no evidence to show he did so nor that it was his intention to do so.  In addition, changing SBP coverage from spouse only coverage to child coverage based upon divorce is not one of the circumstances provided for by law.  While the financial affidavit seems to indicate the FSM’s child is the beneficiary of his SBP, the Board is not sure this entry refers to the military SBP.  The SBP is not a life insurance policy and it does not have a fixed face amount value.  

2.  The Board can make no decision as to whether changing the FSM’s SBP coverage to former spouse coverage would be appropriate since the divorce decree is not available.  Changing it to natural person with insurable interest coverage is not appropriate since the FSM was married when he became eligible to participate in the SBP. 

3.  The Board is sympathetic with the applicant’s situation; however; 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

__aao___  __vbc___  __le____  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035318	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.