MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 October 2000                  
	DOCKET NUMBER:   AR2000035329

	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.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 she be determined to be the beneficiary of the Survivor Benefit Plan (SBP) of her deceased former spouse, a former service member (FSM).

APPLICANT STATES:  The applicant makes no statement.

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

After having had prior enlisted service, he was commissioned and entered active duty on 4 January 1952.  He retired on 1 January 1964.

On 1 June 1973, the FSM elected to participate in the SBP for spouse coverage during the initial Open Season.  

The applicant provides a letter dated 19 October 1973 concerning a marriage settlement agreement between the FSM and the applicant.  In the letter, counsel for the FSM indicated that the FSM informed him that the applicant would continue to be the beneficiary of the SBP.  The FSM and the applicant divorced sometime around 1975.  

On an unknown date, the FSM remarried.  DD Form 2656-2, Survivor Benefit Plan (SBP) Termination Request dated 22 January 1999 shows that the FSM, with his current spouse’s concurrence, terminated his enrollment in the SBP.

The FSM died on 31 October 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.  Elections are made by category.  A decision once made is irrevocable except as authorized by law.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

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.

Public Law 105-85, dated 18 November 1997, established the option to terminate SBP participation.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity, from 17 May 1998 through 16 May 1999, to disenroll from the SBP with the spouse’s written concurrence.
In the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command (AR-PERSCOM).  AR-PERSCOM indicated that they had no record of the FSM enrolling in the SBP.  However, they checked with the Defense Finance and Accounting Service (DFAS).  DFAS verified that their records indicated the FSM had disenrolled from the SBP.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant, via a friend and relative, responded that the FSM had the SBP while he and the applicant were married.  She was named as the beneficiary.  She never waived or concurred in any disenrollment or otherwise gave up any of her rights or entitlements to that SBP.  The AR-PERSCOM letter first noted that there was no evidence that the FSM ever enrolled in the SBP and then stated that he had disenrolled.  In addition, the 19 October 1973 letter states that the FSM informed his attorney that the applicant would continue to be his SBP beneficiary.

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.  SBP elections are made by category, not by name.  When the FSM retired, he elected spouse coverage.  The FSM and the applicant divorced prior to the establishment of former spouse coverage.  The applicant, as a former spouse, could not have been covered by the SBP until 7 years after the divorce and then the FSM would have had to have taken positive action to effect that change.
There is no evidence to show that he did so.

2.  The FSM continued to have SBP spouse coverage after his divorce that would have automatically resumed one year after his remarriage.  The FSM and his then current spouse disenrolled from the SBP when the opportunity presented itself in 1999.

3.  The Board notes that AR-PERSCOM’s advisory opinion states that no evidence of the FSM’s enrollment in the SBP could be found in their records.  However, evidence of his enrollment and subsequent disenrollment was found in DFAS’s records.  

4.  Regrettably, in view of the foregoing there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__eja___  __alr___  __bfh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035329	
SUFFIX		
RECON		
DATE BOARDED	20001031	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.