MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 December 2000                   
	DOCKET NUMBER:   AR2000043005

	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:  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 her widow’s rights have been violated and the SBP is being given to the wrong individual.  After their divorce in 1971, she was unable to locate the FSM, which prevented her from resolving this issue.  She learned of his whereabouts when the Social Security Administration (SSA) notified her of his death.

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

He entered the Army on 27 September 1943.  He and the applicant married in February 1949.  He retired on 1 March 1969.  He and the applicant divorced on 29 April 1971.  At some point the FSM remarried.

The FSM apparently enrolled in the SBP during one of the Open Enrollment periods.  He died on 27 September 1999.  The applicant apparently first learned of the FSM’s death when the SSA notified her in October 1999 that her benefits were changed because of his death.

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. 

Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

The Defense Finance and Accounting Service has stated that the FSM’s spouse at the time of his death was receiving the SBP.  However, her annuity was suspended pending the applicant’s claim.

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 FSM and the applicant divorced before the establishment of the SBP so this issue could not have been “resolved” whether the applicant knew the FSM’s whereabouts or not.  Based upon the fact the FSM had no contact with the applicant after the divorce, the Board concludes that he showed no intent of providing her SBP coverage as a former spouse when that provision of law came into effect.

3.  In addition, the FSM’s spouse is receiving the SBP.  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

__jph___  __rjw___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043005	
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.