MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 July 2001                   
	DOCKET NUMBER:   AR2001054942

	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. Margaret K. Patterson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Terry L. Placek		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 former spouse coverage.

APPLICANT STATES:  That he was divorced in 1992.  As part of the settlement agreement, he is required to continue his former spouse as his SBP beneficiary, not his present wife.

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

He was born on 14 May 1927.  After having had prior enlisted service in the U. S. Navy Reserve and the Army National Guard, he was commissioned in the Army National Guard.  He transferred to the U. S. Army Reserve in February 1957.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated       18 March 1970.  On 29 March 1979, he enrolled in the Reserve Component SBP (RCSBP) for spouse coverage, option B.

On 27 October 1992, the applicant divorced.  The separation agreement stated in pertinent part “The Husband shall take any and all steps to ensure that the Wife is irrevocably designated as the beneficiary of and the successor to the Husband’s interest in such plans upon his death.”

The applicant remarried on an unknown date.

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.  Coverage is made by category, not by name.  Coverage is suspended when there is no eligible beneficiary.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  An Open Season was established from 1 October 1978 – 30 September 1979; later extended to 31 March 1980.

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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage. 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.  An election to terminate spouse coverage under this law, once made, is irrevocable.

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.

On 18 May 2001, the applicant was requested to obtain his current spouse’s concurrence with his requested change of SBP coverage.  He did not respond within the given time frame.

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 divorce decree ordered the applicant, in effect, to change his SBP coverage to former spouse coverage.  He had one year in which to do so.  His former spouse also had one year in which to request that a deemed election be made.  Neither took the steps required by law to change his SBP coverage.

2.  The evidence of record shows that the applicant did not request termination of his SBP spouse coverage after his remarriage.  It appears that his current spouse is now the legal beneficiary of his SBP.  Absent a statement from his current spouse asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant’s former spouse, 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.  The applicant may apply for reconsideration if he provides a notarized statement from his current wife irrevocably waiving any legal interest she may have in his RCSBP annuity.

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

__mkp___  __mhm___  __tlp___  DENY APPLICATION

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

INDEX

CASE ID	AR2001054942	
SUFFIX		
RECON		
DATE BOARDED	20010712	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.