MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 November 2000                   
	DOCKET NUMBER:   AR2000040591

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, 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 he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

APPLICANT STATES:  That she was married to the FSM for over 20 years of his military career.  She became entitled to a portion of his retired pay when they divorced in 1990 and therefore both she and the FSM assumed she was entitled to the SBP as well and signed documentation providing for such.  N___ was the FSM’s spouse for only 4 years prior to his death and for none of his active duty career.  She is not entitled to any benefit due to his Army tenure.  N___ stated that she changed the designated beneficiaries shortly before the FSM died.  She should not have been allowed to change his designated beneficiaries.  

EVIDENCE OF RECORD:  The FSM's military records are not available.  The information contained herein was obtained from alternate sources.

The FSM entered the Regular Army on an unknown date.  H
e and the applicant married on 14 July 1969.  On 15 August 1989, the Fort Bragg, NC Installation Retirement Services Office informed the applicant that the FSM would retire effective 1 September 1989 and that he was eligible to participate in the SBP.  Records at the Defense Finance and Accounting Service (DFAS) indicate that he enrolled in the SBP at this time for spouse and child coverage, reduced base amount.

On 28 February 1990, the FSM and the applicant divorced.  The divorce decree notes that the FSM and the applicant had been separated since September 1982 and that it was the FSM’s intention at that time that they would forever live separate and apart.  There is no mention of either the SBP or a division of retired pay in the divorce decree provided by the applicant.

On an unknown date, the FSM remarried.  During an Open Season the FSM increased the base amount of his SBP, effective 1 April 1993.  On 11 July 1997, the FSM died.  DFAS has confirmed that N___ is drawing the FSM’s 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, not by name.  It required a 2-year waiting period for new spouse eligibility following post-retirement remarriage.  Public Law 94-496, enacted       14 October 1976, reduced this waiting period to 1 year following post-retirement remarriage.  Changes in SBP options are not authorized except in specific instances or authorized by law.

Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the Open Season to 1 April   1992 – 31 March 1993.

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 28 February 1990, the divorce decree made no mention of the SBP.  The divorce decree did state that the FSM and the applicant had been separated since September 1982 and that it was the FSM’s intention at that time that they would forever live separate and apart.  Absent evidence to the contrary, this leads the Board to conclude that it was not the FSM’s intent to provide former spouse SBP coverage for the applicant.

2.  The SBP is intended to provide an annuity to a retired member’s spouse or dependent children after his death.  Spousal eligibility is not contingent on the spouse being married to the member while he was in the Army.  There is no evidence to show that any change was made to the FSM’s SBP election other than his increasing the amount of coverage during the 1992 – 1993 Open Season.  Since the FSM never changed his original spouse and child coverage election, there was no need for N___ or anyone else to change the designated beneficiary.  

3.  The lawful beneficiary of the FSM’s SBP is currently drawing the SBP annuity. Absent a statement from the FSM’s surviving 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.  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

__MKP__  __JHK__  __WAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040591	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.