MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  23 October 2001
	DOCKET NUMBER:  AR2001058441

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Allen L. Raub		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 she, the former spouse of the deceased former service member (FSM) be awarded his Survivor Benefit Plan (SBP) annuity.

APPLICANT STATES:  That a part of the court order in the divorce decree required the FSM to maintain her as the SBP annuitant.  She provides a copy of the final decree of divorce, the death certificate, and her current marriage license in support of her application.

EVIDENCE OF RECORD:  The FSM military records show:

He and the applicant were married on 21 November 1964.  On 28 February 1973, the applicant was retired in the pay grade of E-7 with 20 years, 10 months, and 14 days active duty service.  The applicant elected full SBP coverage for spouse only.

On 3 September 1986, the FSM and the applicant were divorced.  Page 7 and 8 of the divorce decree states that the FSM had provided SBP benefits for the applicant and that benefit shall not be revoked, modified, amended, withdrawn, or altered in any form by the FSM during his lifetime.  There is no evidence of record that either the FSM or the applicant filed the divorce decree with Army finance officials or that either party attempted to change the SBP annuitant election from spouse to former spouse.

The FSM remarried on 5 June 1996.  The FSM died on 3 August 2000.  The widow, spouse of the FSM at the time of his death, is in receipt of the SBP annuity.

Public Law 92-425, 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.  Elections are made by category.  SBP coverage is suspended when there is no eligible beneficiary and automatically resumed when there is again an eligible beneficiary.

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.

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 1450, authorizes a service member, who is participating in the SBP, to file a change to the designated annuitant when required by a court order to make such an election.  Subsection (f)(3)(C) establishes that the election must be made within 1 year from the date of the court order and can be made by the service member or the former spouse.

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 applicant and the FSM were divorced prior to the enactment of Public Law 99-661, which allowed the Federal Government to accept divorce court orders concerning SBP coverage without the member’s consent.

2.  Additionally, neither the FSM nor the applicant provided a copy of the divorce decree, within the established time limit, to name the applicant, as former spouse, as the new SBP annuitant.

3.  The FSM remarried on 5 June 1996 and his new spouse became his legal SBP annuitant under Federal law.  To grant the applicant’s request at this date would constitute an unconstitutional taking without due process of law.

4.  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.

5.  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

__sp___  ___to___  __ar____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058441	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.