MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                   
	DOCKET NUMBER:   AR2000041457

	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. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, 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 enrolled in the Survivor Benefit Plan (SBP) for former spouse coverage.

APPLICANT STATES:  That she was not aware of the option to take the SBP when the FSM retired nor was she aware that it could have been continued after their divorce.  Supporting evidence is as listed on the DD Form 149.

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

After having had prior service, he reenlisted in the Regular Army on 15 March 1948.  He and the applicant married on 7 May 1949.  He retired on 1 December 1968.  His request for retirement shows that he had not previously elected to enroll in the Retired Serviceman’s Family Protection Plan (RSFPP).

On 2 March 1973, the FSM and the applicant divorced.

On 31 December 1998, the FSM died.  The death certificate shows the FSM was married to an individual not the applicant at the time.

Public Law 92-245, enacted 21 September 1972, repealed the RSFPP and established the SBP.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).  If the member was legally married as of the last day of the Open Season and had not made an election, spousal notification only was required.  

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses for retiring members. 

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 SBP had not yet been established when the FSM retired.  While the FSM and the applicant were still married at the inception of the SBP in September 1972, they were divorced by March 1973.  On 20 March 1974, the last day the FSM had to enroll in the SBP, the applicant was no longer his legal spouse and so there was no requirement to notify her that the FSM declined the SBP.

3.  Former spouse SBP coverage was not even authorized by law until 1982.  There is no evidence to show that it was ever the FSM’s intent to provide former spouse coverage.  In any event, it appears he was legally married at the time of his death and did not even have spouse coverage in effect.

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

__jlp___  __bjl___  __owt___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041457	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.