MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 December 2000                   
	DOCKET NUMBER:   AR2000042946

	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. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		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 changed his Survivor Benefit Plan/Reserve Component Survivor Benefit Plan (SBP/RCSBP) election to former spouse coverage.

APPLICANT STATES:  That the 1989 divorce decree stipulates that she would be the recipient of his SBP.  According to the divorce decree, she had the option to file for the former spouse benefit at the time of the FSM’s death.  She has since been told that she should have filed for the benefit within a year of the decree being filed in circuit court.  A subsequent wife is presently receiving this benefit.  This is in violation of the Benton County, Oregon Circuit Court decree.

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

He was born on 26 August 1920.  He enlisted in the Army National Guard on      21 November 1938.  He was commissioned on 3 September 1942 and transferred to the U. S. Army Reserve on 4 January 1946.  The FSM and the applicant married on 26 December 1967.  

The FSM’s notification of eligibility for retired pay at age 60 is not available.  He transferred to the Retired Reserve in July 1975.  He apparently elected either the RCSBP when it became available in 1978 or the SBP upon reaching age 60 in 1980.  His election information is not available.

On 8 November 1988, a stipulated agreement was entered into in which it was ordered the marriage between the FSM and the applicant would terminate effective 23 February 1989.  The stipulated decree of dissolution stated in pertinent part that the FSM was “required to maintain the petitioner as the recipient of the Survivor’s Benefit Plan of his military retirement.  That within one year of this decree the respondent shall elect and cover the petitioner as a former spouse under the Survivor’s Benefit Plan.  That in the event the respondent shall fail to do this, the petitioner shall have the right to request and complete the necessary forms to remain as the recipient of the Survivor’s Benefit Plan as a former spouse…”

On 10 January 1989, attorney for the applicant sent the stipulated decree to counsel for the FSM.  The attorney for the FSM was informed as to what the FSM was required to do in order to change his SBP/RCSBP coverage to former spouse coverage.  On 7 April 1989, the attorney for the applicant informed the attorney for the FSM that they had not yet received confirmation that he had changed his SBP/RCSBP coverage.  On 1 August 1989, the attorney for the applicant informed the attorney for the FSM that if the FSM did not comply with the terms of the decree immediately they would file a contempt motion.  

On 7 October 1989, the FSM remarried.
On 6 November 1998, the FSM died.  According to the applicant, the spouse he married in October 1989 is receiving his SBP/RSCBP benefit.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.

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 98-94, dated 24 September 1983, established former spouse coverage for retired members, to include Reservists.

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.

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.  When the FSM and the applicant were divorced, the stipulated court decree 

did require the FSM to maintain the applicant as the recipient of the SBP/RCSBP and that he make the required changes within one year of the decree.  The FSM failed to take that action and the applicant, or at least her attorney, knew by         1 August 1989 that the FSM had failed to take that action.  Such a contingency was covered by the stipulated court decree when it additionally stated that if the FSM failed to take that action, the applicant had the right to request and complete the necessary forms to remain as the recipient of the Survivor’s Benefit Plan as a former spouse.  There is nothing in the decree that gave her the option to file for the former spouse benefit at the time of the FSM’s death and Federal law, which her attorney should have been aware of, required her to take action within one year of the filing of the decree.  She failed to take that action.

2.  The lawful beneficiary of the FSM’s SBP/RCSBP is currently drawing the annuity.  Absent a statement from the FSM’s second spouse asserting that she agrees to renounce payment of the 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.

3.  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

__jph___  __rjw___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042946	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.