MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR2000040301

	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. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 he elected Survivor Benefit Plan (SBP) former spouse coverage.

APPLICANT STATES:  That she married the FSM in 1977 in Germany.  They had one child, born in 1979.  They separated in 1987.  She signed a separation and division of property agreement, prepared by a Judge Advocate General officer, in June 1989.  Because she was unaware of the SBP, the agreement only mentions military retirement benefits, which she was told would be available for life unless she remarried.  Four years later she actually retained counsel to finalize the divorce and was told that she had “waived” the SBP when she signed the agreement.  The final divorce action was complicated by a jurisdictional problem since the FSM was still in Germany.  Due to that fact, the issue of property division had to stay the same as in the agreement or the Court would not have the jurisdiction to hear a contested case on property division.  The divorce was finalized on 29 January 1993.  The FSM retired in 1993 and according to the agreement she was to receive 40 percent of his retired pay.  She received only 18 percent.  She was again told that if she did not remarry she would receive income from his pension for life.  Since the FSM died in 1998 she has not received any of his retirement pay and now she is being told she will not get any survivor benefits.  In a telephone conversation with the Defense Finance and Accounting Service (DFAS) in February 2000, they told her that the FSM claimed no survivors at the time of his retirement.  She does not understand how this could be since the Government continued to send checks each month to her house until he died and notified their son (of the FSM’s death).  No supporting evidence is provided.

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

After having had prior service, he reenlisted in the Regular Army on 19 May 1971.

The FSM and the applicant apparently married in 1977.  They apparently separated in 1987 and signed a separation agreement in 1989.  The separation agreement apparently mentioned only retired pay and not the SBP.  The divorce apparently became final in January 1993 and apparently also did not mention the SBP.  Neither the separation agreement nor the divorce decree is available.  

The FSM retired on 1 April 1993, in Germany.  He completed DA Form 4240, Data for Payment of Retired Army Personnel, at this time and declined SBP coverage.  His son was listed as the beneficiary for final retired pay.

The FSM apparently died on 6 July 1998.  The death certificate is not available.

On 15 February 2000, DFAS informed the applicant’s Representative that the FSM did not make an SBP election when he retired.

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.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.

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 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

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.  The circumstances in this case are unfortunate but the Board concludes that there is no evidence of Government error.

2.  The separation agreement and the divorce decree are not available but the applicant states that there was no mention of the SBP in the separation agreement.  It is possible that retention of civil counsel at the time the separation agreement was prepared could have precluded that oversight; however, in any event the SBP was not mentioned in the agreement.  Due to circumstances beyond the applicant’s control, the SBP was not mentioned in the divorce decree either and the divorce was finalized in January 1993, prior to the FSM’s retirement.

3.  Since the FSM was not married on the effective date of his retirement and he had declined SBP coverage and since the applicant was no longer the FSM’s spouse, it was not required that she be notified of his declination or that she concur in his declination.

4.  The Board cannot determine exactly what DFAS told the applicant over the phone regarding the FSM claiming he had no “survivors.”  However, from DFAS’s response to her Representative it appears DFAS may have told her that he had no Survivor (Benefit Plan) beneficiaries.  The Government continued to send checks to her house because the separation agreement entitled her to a portion of the FSM’s retired pay.  Because a retired service member’s retired pay stops when he or she dies, she would have stopped receiving those checks upon the FSM’s death.  She would have been entitled to a portion of his retired pay after his death had he elected SBP former spouse coverage; however, he did not do so.  The son would have been notified of his death because he was next of kin and he was listed as the FSM’s beneficiary for his unpaid retired pay.

5.  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

__ew____  __mvt___  __kwl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040301	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.