MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 August 2000                   
	DOCKET NUMBER:   AR2000039219

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 decision on the survivor annuity be reversed and that she be determined to be entitled to a portion of the retired pay of her deceased former spouse, a former service member (FSM).

APPLICANT STATES:  That she and the FSM were married for over 36 years. The court ordered that she receive half of the FSM’s retired pay.  Now she is being told that the court order is null and void because he died before he was 60 years of age.  The FSM earned his retirement as she did by being with him for all of his military years.

EVIDENCE OF RECORD:  The FSM's military records from his Reserve Component service are not available.  The information contained herein was obtained from his active duty records and from information provided by the applicant.

The FSM was born on 19 July 1943.  He enlisted in the Regular Army on 11 April 1962.  He and the applicant married on 30 August 1962.  He was separated on 19 July 1970 and at some point enlisted in a Reserve Component.

On an unknown date the FSM received his notification of eligibility for retired pay at age 60 (his 20-year letter).  On 19 September 1993, he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage, option C.

A revised qualified domestic relations order (QDRO) dated 16 July 1999 (the decree of dissolution of marriage and the QDRO were entered into on               10 February 1994) noted that the “parties have agreed that one-half (1/2) of the Respondent’s military retirement plan is to be awarded to the Petitioner…creating in Petitioner a one-half (1/2) interest in Respondent’s disposable retired or retainer pay…It is understood, however, that this award of pension benefits is to be based upon the vested accrued benefit provided by the military retirement plan and shall be calculated as of the date payments are made.”

The FSM apparently remarried since an individual not the applicant is listed on the death certificate as his spouse.  He died on 10 January 2000.

On 15 February 2000, the Army Reserve Personnel Command informed the applicant that Title 10, U. S. code, section 12731(a) provides that a person is entitled upon application to retired pay computed under section 1401.  An individual must apply for retired pay to receive it.  The member must survive to reach the age of 60 before he can apply.  Since the FSM died prior to reaching age 60 she is ineligible to receive any retired pay benefits and the QDRO is considered null and void.

Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60. 

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

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 FSM was not eligible to draw retired pay until he reached age 60 and he knew this when he received his 20-year letter.  The Court also acknowledged this requirement when it worded the QDRO to state that award of pension benefits to the applicant was to be calculated as of the date payments are made.  Since the FSM did not live long enough to become eligible to draw retired pay, the applicant could not receive a benefit based upon a benefit to which the FSM was not entitled.  

3.  The applicant is also not entitled to the FSM’s RCSBP.  The QDRO did not mention the RCSBP and there is no evidence to show that the FSM intended to change his RCSBP from spouse to former spouse coverage.  

4.  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

__gdp___  __clg___  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039219	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.