MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000046938

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 his Survivor Benefit Plan (SBP) coverage be changed to dependent daughter.

APPLICANT STATES:  That his SBP form lists his daughter as his wife.  He was divorced in 1973 and therefore had no wife at the time of his retirement.  He provides his 1973 divorce decree, an undated letter from the Defense Finance and Accounting Service (DFAS) showing he was refunded spouse SBP costs back to September 1992, and medical documents showing his daughter, P___, had severe medical problems at least since age five, as supporting evidence.

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

He enlisted in the Regular Army on 18 April 1961.  

In September 1973, the applicant was divorced from G___.

An Application for Uniformed Services Identification and Privilege Card, DD Form 1172, dated 9 April 1980, shows that his wife P___ was issued an identification card and that the date of marriage was 11 December 1974.  His Record of Emergency Data, DD Form 93, dated 12 April 1977 shows that he was married to P___.

On 18 March 1981, the applicant completed a Data for Payment of Retired Army Personnel, DA Form 4240.  Item 7a shows his marital status as married.  Part IV shows that he was married and elected spouse and dependent children SBP coverage.  “NA” is listed in item 17, name of spouse.  His daughter, P___, is listed as his dependent child in this item.  Part IX shows that his spouse was informed by letter of his SBP election.

The applicant retired on 1 May 1981.  At that time he authored a statement indicating he could not return his dependent’s identification card because they were separated.

In 1998, the applicant requested DFAS change his SBP election to child only.  He provided DFAS a copy of his 1973 divorce decree.  DFAS refunded him spouse SBP costs retroactive to September 1992, further refunds being prohibited by the barring statute.

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.  

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 evidence of record shows that the applicant married P___ after his 1973 divorce and was still married to her as of 9 April 1980.  He provides no evidence of record to show he was not married to her at the time of his retirement.  He provides no evidence to show that he is not still married to her.  The divorce decree he provided as supporting evidence pertains to another woman.  Although his spouse is not listed by name on the DA Form 4240, he listed his marital status as married and elected spouse and children SBP coverage.  

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

__aao___  __teo___  __bfh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046938	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.