MEMORANDUM OF CONSIDERATION

IN THE CASE OF:        

BOARD DATE:           14 September 2000                  
DOCKET NUMBER:   AR2000037312

	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	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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: Reconsideration of her application to correct the deceased former service member’s (FSM) records to show his beneficiary election to include entitlement to Survivors Benefits Program (SBP) for his former spouse.

APPLICANT STATES:  In effect, it was the intent of the FSM to cover both her and her daughter upon his death.

COUNSEL STATES:  In effect, that it was the intent of the FSM to provide SBP benefits for both his daughter and his former spouse.  He avers that this was demonstrated by the fact that the FSM had elected spouse and child coverage and that even after his divorce he continued to pay the premiums at this level.  Counsel avers that the Board has the authority to grant relief and afford the former spouse SBP benefits based upon this intent.  He further states that the applicant could have been covered under the provisions of the law in effect as an “other insurable party”.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of the case on 11 August 1999 (COPY ATTACHED).

In the course of review of this case a legal opinion was requested from the legal advisor for the Army Review Boards Agency (ARBA) to determine if there was any legal way to correct the FSM’s records.  The legal opinion was that there was no legal way to afford the applicant this benefit.

The applicant’s counsel responded to the advisory opinion with the contention that it was the intent of the FSM to provide this benefit for his former spouse.  Counsel contends that it is not equitable that the former spouse is not able to collect this benefit because the FSM passed away only five weeks prior to the enactment of the revisions of law that would have permitted him to designate his former spouse as beneficiary.  Counsel further states that under the law in effect at the time of the FSM’s death, the applicant could have been considered for entitlement as an “other natural person”.  Counsel also contends that the applicant did not receive reimbursement for the difference in premiums withheld. 

These contentions constitute new argument that requires Board review.

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.  As noted in the previous decision, the FSM died, 24 December 1982, five weeks prior to the enactment of the revisions of the law that allowed a retiring service member to elect former spouse coverage but nine months prior to the enactment of the laws that included this option to those members who were already retired.  Further, there is no provision in either law that would allow for retroactive entitlement under the revised law.

2.  The question of entitlement, under the law in effect at the time of death, as an “other natural person” cannot be applied to the applicant.  As noted in the prior review, this provision of the law could be used only if the service member was not married and had no children.  The FSM’s intent did not supplant the law. 

3.  The applicant has provided no evidence to refute the Defense Finance and Accounting Service records that show that the difference in premiums was refunded in January 1984 to the daughter, the legal beneficiary.

4.  The Board accepts the legal review, with the exception of the statement regarding that the applicant was refunded the SBP premiums erroneously collected.

5.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

6.  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

__rvo ___  __mkp__  __eja ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037312	
SUFFIX		
RECON	 	
DATE BOARDED	20000914 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.