MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 February 2001                   
	DOCKET NUMBER:   AR2000047580

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		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 the divorce decree ordered that she be made the irrevocable beneficiary of the SBP.  The award of the SBP to the widow is in contempt of the court order.

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

He enlisted in the Regular Army on 20 June 1963.  He and the applicant married on 15 October 1966.  He retired on 1 July 1983.  At that time he enrolled in the SBP for spouse and children coverage.

On 28 December 1990, the FSM and the applicant divorced.  The divorce decree states in pertinent part “It is further ORDERED, ADJUDGED, and DECREED that the Plaintiff shall make the Defendant the irrevocable beneficiary of his United States Military Retirement Survivor Annuity and shall keep said annuity in full force and effect.”

In March 1991, the FSM received a refund of SBP premiums he had paid since the divorce.

On an unknown date, the FSM remarried.  His SBP spouse coverage was not automatically restarted, presumably because he did not notify the Army of his remarriage.

On 26 January 1998, the FSM died.  On an unknown date, his widow applied for the SBP annuity.  The Defense Finance and Accounting Service (DFAS) authorized her the annuity contingent upon her paying back premiums.  (As of    19 December 2000, the annuity had not yet been paid to the widow because all back premiums had not yet been collected.)

On 8 March 2000, the SBP Board approved the applicant’s request to change the FSM’s SBP election from spouse to former spouse.  The SBP Board noted that the FSM’s finance file contained no written request from either party on this matter. The SBP Board requested that DFAS discontinue payments to the widow and initiate the annuity for the applicant.

On 22 June 2000, the SBP Board rescinded its 8 March 2000 decision.  The SBP Board noted that their previous decision had been based on the erroneous information that the FSM had continued paying SBP premiums until he died.  In fact, his SBP coverage was terminated in March 1991, only three months after his divorce, premiums paid since the divorce were refunded and no further premiums were deducted.  
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 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse.  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

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.  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.  The Board notes that the divorce decree ordered the FSM to maintain the applicant as his SBP beneficiary.  However, Federal statute provides that the FSM must have made a written request within one year of the date of divorce to change his SBP election.  Since the FSM obtained a refund of his SBP premiums just three months after his divorce and paid no further premiums, it appears that it was his intent not to comply with the court order.  The applicant, however, could have requested a deemed election within one year of the divorce.  There is no evidence to show that either she or her attorney did so. 

2.  Although the FSM failed to pay SBP spouse premiums after he remarried, there is no evidence to show that he elected not to resume spouse coverage.  His spouse coverage should have automatically restarted after he remarried provided, of course, that he informed the Army that he had remarried.  

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.  Since she agreed to pay all back SBP premiums, the Board concludes that DFAS made a proper decision to show she is the legal SBP beneficiary and so entitled to the annuity.  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.  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

__rvo___  __sk____  __tsk___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047580	
SUFFIX		
RECON		
DATE BOARDED	20010222	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.