MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 July 2000                   
	DOCKET NUMBER:   AR2000039585

	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. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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:  That the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage.

APPLICANT STATES:  That her income terminated at the time of the FSM’s death.  She has no income now.

EVIDENCE OF RECORD:  The FSM's military records are not available.  The information contained herein was obtained from documents provided by the applicant.

The FSM and the applicant married on 10 July 1961.  The FSM retired from active duty on 1 March 1976 and apparently elected SBP spouse coverage at this time.

The FSM and the applicant separated in October 1986.  On 18 February 1987, a property settlement agreement directed “That the Plaintiff agrees to pay to the Defendant the sum of $400.00 monthly and to maintain payment of the Survivor Benefit Plan through the United States Army.  By settlement of this Agreement, the U. S. Army is authorized to make direct payment…”

The applicant provides a letter from the FSM to her postmarked 2 March 1986 in which the FSM remarked “Since I’m going to keep your Survivor Benefit Plan going it may…”

The FSM and the applicant divorced on 24 March 1987.  The divorce decree stated that the settlement agreement was approved by the Court.

On an unknown date, the FSM remarried.  On 25 November 1999, the FSM died. On 13 July 2000, the Defense Finance and Accounting Service confirmed that the FSM’s surviving spouse was receiving his SBP annuity.  

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 and, once made, are irrevocable except as provided by law.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses for retiring members.  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 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

Title 10, U. S. Code, section 1450(a) provides that an SBP annuity shall be paid to the member’s beneficiaries as follows:  (1) to the surviving spouse or former spouse; (2) to the surviving children if the eligible surviving spouse or the eligible former spouse is dead or otherwise becomes ineligible; (3) to other eligible beneficiaries.

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.  When the FSM and the applicant were divorced on 24 March 1987, the court ordered the FSM to maintain payment of the SBP.  Presumably the intent was to maintain the applicant as the beneficiary.  The Board believes that it was the FSM’s intent to comply with the court order.

2.  However, the FSM did not change his SBP from spouse to former spouse coverage and there is no evidence to show the applicant made a deemed election within one year of the divorce.  This is a separate action from the division of retired pay.  The agreed upon division of retired pay was effected; however, the FSM’s retired pay stopped at his death therefore the applicant’s portion of his retired pay also stopped.

3.  Even though there is no evidence of government administrative error, in view of the circumstances the Board ordinarily would consider granting the applicant relief.  Under the law, only one category of SBP beneficiary may receive the annuity and the lawful beneficiary of the FSM’s SBP is currently drawing the SBP annuity.  Absent a statement from the FSM’s second spouse asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

4.  Regrettably, 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

__sac___  __amc___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039585	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.