MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000048249

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		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 (SBP) coverage to former spouse coverage.

APPLICANT STATES:  That when the FSM left her he took their 16 year old son with him and moved to North Carolina while she remained in New York.  She was receiving no adequate support from him and was unable to appear at the divorce hearing.  It appears that the FSM did not follow through to change his SBP from spouse and child to former spouse coverage.  He paid into the SBP from their divorce in 1990 until he died in 1992.  She attempted to apply for the annuity in 1994, well before the statute of limitations ran out.  She knows the FSM wanted to provide her with adequate support through the SBP and does not understand why the Army continues to deny her the benefit.  She provides the FSM’s Report of Transfer or Discharge, DD Form 214; a Designation of Beneficiary, Government Life Insurance, VA Form 29-336, dated 28 June 1989; his April 1983 Retired/Annuitant Pay Statement; the divorce decree; a letter from her attorney dated 14 June 1990; the death certificate; an Order of Dismissal of Plaintiff’s Claim dated 17 February 1993; a Request for Information and/or Reply to Correspondence dated 20 June 1994 from Retired Pay Operations to the applicant; an Application for Annuity and/or Final Pay dated 29 June 1994; and a letter from the New York Division of Veterans’ Affairs to her attorney dated         28 November 1994 as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no further contention.

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

After having had prior service, he entered active duty as a commissioned officer on 19 January 1943.  He retired on 1 July 1967.

The FSM and the applicant married on 24 October 1980.

On 23 October 1981, the FSM enrolled in the SBP for spouse only coverage.

On 28 June 1989, the FSM designated his stepson as his principal Government Life Insurance beneficiary and the applicant as the contingent beneficiary.

The FSM filed for divorce in January 1990.  The Judgment of Absolute Divorce noted that the FSM and the applicant separated on or about 21 August 1987 and that it was the FSM’s intention at that time to permanently terminate the marital relationship.  The divorce became final on 4 May 1990.  There is no mention of the SBP in the divorce document provided.

A 14 June 1990 letter from the applicant’s attorney to her noted that her 5 June 1990 conversation with his secretary concerning the SBP was confirmed.  According to the FSM’s attorney, upon the death of the FSM the benefits were projected to be 100 percent of his retirement pay.  (There is no further explanation of this “100 percent” statement.  The maximum SBP annuity is 55 percent of retired pay.)

On an unknown date, the FSM filed an equitable distribution claim.  He died on 25 December 1992 and the claim was dismissed in February 1993.

On 29 June 1994, the applicant applied for the SBP annuity.  DFAS denied her claim apparently upon discovering that she was no longer married to the FSM.

On 28 November 1994, the New York Division of Veterans’ Affairs wrote to the applicant’s attorney to get a clear explanation of her entitlement to SBP benefits after the divorce.  The Division noted that from the above-noted letter dated      14 June 1990, it appeared that there was some mention of a provision for her entitlement to the SBP.  Her attorney apparently did not respond or provide any documentation, such as a marital settlement agreement, concerning an SBP agreement during the divorce.

The Defense Finance and Accounting Service has confirmed that the FSM paid SBP spouse premiums until his death.

Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP 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.  It declared an Open Season for those members who retired prior to enactment of the law.

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, enacted 24 September 1983, established SBP for former military spouse for retired members.

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.

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 the applicant’s contention that the FSM would have wanted to use the SBP to provide her with adequate support.  However, the Board also notes her earlier, contradictory statement that the FSM provided her no adequate support after he left her.  The Board concludes from this that it was not the FSM’s intention to provide for her by changing his SBP coverage to former spouse coverage.  This intention appears to be corroborated by the Government Life Insurance policy wherein the FSM made his stepson the principal beneficiary; the applicant was only the contingent beneficiary.

2.  In the absence of supporting evidence such as a marital support agreement to show that the FSM was required to change his SBP spouse coverage to former spouse coverage, the Board is not convinced that his continued payment of SBP premiums was an indication of his intent to provide SBP coverage for the applicant.  The Board concludes, rather, from the FSM’s failure to provide her adequate support and from his making his stepson the principal beneficiary of his Government Life Insurance, that it was simply an oversight on his part.

3.  The Board also concludes, in the absence of evidence showing that it was the FSM’s intent to provide the SBP to the applicant, that no injustice has occurred.  Congressional intent behind the SBP law was to provide for the spouse who had supported the member during his military career.  The applicant and the FSM did not marry until 13 years after he retired.

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

__jh____  __dph___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048249	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.