MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 October 2001                   
	DOCKET NUMBER:   AR2001052086

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 former spouse, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) former spouse coverage.

APPLICANT STATES:  In effect, that the divorce decree ordered the FSM to “name” her as sole beneficiary of SBP and he shall be responsible for paying all premiums for SBP.  She was unaware that the FSM terminated the coverage. She was not notified that the SBP coverage was discontinued nor was she aware that she had one year to dispute this.  The applicant submits a copy of her divorce decree, a copy of her certificate of marriage and a copy of the FSM’s death certificate in support of her application.

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

The FSM was born on 31 October 1946.  He initially enlisted in the Regular Army on 30 March 1973, his services were continuous through extensions and reenlistments.  

The applicant and the FSM married on 16 November 1974.  On 1 April 1990 the FSM retired.  At the time of his retirement the FSM elected SBP coverage for the applicant.

On 15 March 1993, the applicant and the FSM divorced.  The divorce decree awarded the applicant 39.16% of the FSM’s retirement pay and benefits as a former spouse of a retired military service member.  It further ordered and decreed that the applicant be named the sole beneficiary on the FSM’s SBP
and that the FSM shall choose the maximum benefit which is to be payable the applicant.

The Defense Finance and Accounting Service – Cleveland has stated that SBP
coverage was terminated upon notification of the divorce (April 1993). 

On 29 October 2000, the FSM died.

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 (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.

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 has elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

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 has elected spouse coverage at retirement.  The law stipulated that the retiree had to request the Defense Finance and Accounting Service to change SBP participation from spouse to former spouse.  The law also stipulates that the former spouse has 1 year from the date of the divorce decree to make a deemed election as beneficiary under the SBP.  The FSM and the former spouse failed to make a written request within 1 year of the date of the divorce.

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.  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 the aforementioned requirement.

2.  There is no evidence of Government error in this case.  However, attorneys for the applicant and the FSM 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.”  If he 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 on 15 March 1994. 
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

__slp___  __alr___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001052086	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.