MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 August 2000                   
	DOCKET NUMBER:   AR2000042124

	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. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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:  In effect, that she was not aware of nor was she notified of the requirement to make a deemed election.  She should not be punished because of a clerical error that may have happened after their divorce.  The Army was aware she was a former spouse and issued her an identification card.  She is due the SBP benefits the FSM paid on until he died.  Supporting evidence is listed on the DD Form 149 but no supporting evidence was included with the application.

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

He entered the Army in October 1948.  He retired on 1 November 1968.

The Defense Finance and Accounting Service (DFAS) confirmed that the FSM enrolled in the SBP in 1972.  The SBP annuity is currently being paid to L___.  It appears the FSM and L___ married in 1989.  The FSM died earlier in 2000.

Public Law 92-245, enacted 21 September 1972, 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.  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 (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

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.

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 supporting evidence listed on the DD Form 149 was not included with the application so the Board can only presume that the divorce decree directed the FSM to maintain the applicant as his SBP beneficiary.  However, the evidence of records shows that the FSM failed to change his SBP election to former spouse coverage and, as the applicant states, she was unaware of the requirement to make a deemed election.  Therefore, when the FSM died he still had spouse coverage in effect.

2.  A request for a deemed SBP election is a separate action from a request for a former spouse identification card and even from a request for division of retired pay, if such is directed by the divorce decree.

3.  Since the FSM died with spouse coverage in effect, his legal spouse at the time of his death is the lawful beneficiary of his SBP.  Even if she lost her eligibility for the SBP annuity through remarriage before age 55, she would regain her eligibility if that remarriage were later terminated.  The Board will not take any action to prevent the lawful beneficiary from becoming eligible to receive 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

__mdm___  __js____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042124	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.