MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2000                   
	DOCKET NUMBER:   AR2000037659

	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 E. Anderholm		Member	
	Mr. Ernest W. Lutz, 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:  In effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he elected Survivor Benefit Plan (SBP) former spouse coverage.

APPLICANT STATES:  That the FSM always told her that he wanted her taken care of even though they divorced in 1990.  She was not even made aware of his death until 1994, two years after he died, and now is being told that the statute of limitations applies.  She feels she is entitled to some compensation due to incompetent record keeping and a complete lack of response to her requests.  The FSM’s death certificate has several items of misinformation on it, to include his marital status.  Her alimony checks stopped in March 1994 but no one from the Retired Pay Center or the Social Security office would give her information until the Army sent her a notice of his death on 22 August 1994.  Then in January 1995 she was notified she had to repay the overpayment of alimony checks.  She had to get the assistance of her Congressman to help her get a waiver, which was finally approved in February 1996.  She provides her divorce decree as supporting evidence.

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

He initially enlisted in the Army National Guard on 1 December 1933 and was separated on 1 July 1936.  He enlisted in the Army of the United States on        30 July 1942 and served until he was commissioned in the Army of the United States on 16 April 1943.  He separated on 31 December 1948 and entered the  U. S. Army Reserve as a commissioned officer on 1 January 1949 until he was separated on 30 June 1949.  He then enlisted in the Regular Army on               19 February 1951 and retired on 1 September 1966.  

On 16 December 1975, the U. S. Army Reserve Components Personnel and Administration Center published orders advancing the FSM to the rank of major on the retired list.

On 1 March 1976, the FSM enrolled in the SBP for spouse-only coverage.  The FSM and the applicant married on 3 April 1976.

The FSM and the applicant divorced on 16 July 1990.  The divorce decree stated that in accordance with the marital settlement agreement dated 18 October 1988 the applicant would be paid $500.00 per month for spousal support.  No mention of the SBP is made.  

The FSM died on 29 September 1992.  It cannot be determined if he continued to pay SBP premiums until his death.  The death certificate notes his military service as 1942 to 1975, his marital status as widowed, and his daughter-in-law as the informant.  The Army prepared the DD Form 1300, Report of Casualty on 31 May 1994.
Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

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.

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 this requirement.

2.  The applicant has provided no evidence to show that it was the FSM’s intent to take care of her through the SBP even though they were divorced.  The Board notes that the divorce decree does not award her former spouse SBP coverage.  
The Board notes that the FSM and the applicant had been married for 14 years but also notes that all of that time was after the FSM retired.

3.  At this point in time, it cannot be determined how the FSM was allowed to enroll in the SBP on 1 March 1976 since the Open Enrollment period ended on 20 March 1974 and he did not marry the applicant until 3 April 1976.  It cannot be determined if the FSM continued to pay SBP premiums until his death, which may have indicated his intent to provide SBP coverage for the applicant.

4.  The Board regrets that the applicant received poor service from the Social Security Administration and from the insurance company but the Army has no jurisdiction over their actions.  The Board regrets that the applicant was not notified by the Army of his death until August 1994 but it appears the Army itself was not aware of his death until May 1994.  The Board also regrets the “false facts” on the FSM’s death certificate but the Army was not responsible for reporting that information.  These “errors” do not warrant the relief requested.

5.  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___  __jea___  __ewl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037659	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.