MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000045816

	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. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 elected Survivor Benefit Plan (SBP) former spouse coverage.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant was granted SBP benefits pursuant to the divorce decree.  The FSM was also compelled to act according to the decree by a second hearing.  The SBP naming his present spouse as recipient should be deemed null and void due to the court orders in effect.  

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

He entered active duty in 1952 and retired on 1 April 1974.  Defense Finance and Accounting Service (DFAS) records show that he enrolled in the SBP at this time for spouse coverage.

On 5 April 1991, the FSM and the applicant divorced.  The divorce decree states in pertinent part “The Husband shall elect a Survivor Benefit Plan for the Wife,…during the next enrollment period.  The Husband shall execute all documents necessary to implement said Plan including the filing of a Survivor Benefit Plan Election Statement for Former Spouse coverage before the next available enrollment period.…”

The FSM apparently failed to execute the order of the decree.  On 7 September 1993, the court issued a Final Order on Motion for Enforcement of Final Judgment of Dissolution of Marriage which stated in pertinent part “The Husband shall elect a Survivor Benefit Plan for the Wife,…during the next enrollment period…”

On 11 October 1993, the FSM completed a Survivor Benefit Plan (SBP) Open Enrollment Election, DD Form 2618, and elected former spouse coverage.  DFAS apparently did not process this form because it was completed outside of the Open Enrollment period.  

On 13 September 1994, the FSM wrote to the SBP Board requesting that his SBP election be changed from spouse to former spouse.  The Army Retirement Services stated that they never received the original of this letter, only a copy provided by the applicant or her attorney.  Army Retirement Services informed them that they needed a request with the FSM’s original signature on it.

DFAS records indicate that the FSM remarried on 16 May 1998.

The FSM died on 31 October 1999.  His spouse at the time of his death is currently receiving his 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. 

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.

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.

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

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.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  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 in 1991, the court decree stated “The Husband shall elect a Survivor Benefit Plan for the Wife,…during the next enrollment period.  The Husband shall execute all documents necessary to implement said Plan…“  However, it appears that the FSM had no intention of complying with this court order so on 7 September 1993 the court issued another order ordering him to provide SBP coverage for the applicant.  After completing the DD Form 2618 in October 1993, seven months after the Open Enrollment period expired, he then failed to provide the SBP Board an original letter, with original signature, signifying his intent to change his coverage.

2.  In addition, attorney for the applicant should have known that federal law clearly required that the FSM make a written application to the Army to have his SBP election changed from “spouse” to “former spouse.”  Waiting for an Open Enrollment period to do so is not required by law.  If the FSM failed or refused to do so, federal law clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made.  The law also provides, however, 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.  In this case, the law’s one-year time limit to request a deemed election expired in April 1992. 

3.  There is no evidence of government administrative error.  The lawful beneficiary of the FSM’s SBP is currently drawing the SBP annuity.  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.  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

__lls___  __jea___  __bjl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045816	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.