MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001058982

	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	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, 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 deceased former spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for former spouse coverage.

APPLICANT STATES:  That their divorce became final in 1977 after 22 years of marriage.  She was awarded community interest in his military retirement.  When the FSM retired in 1988, he informed her that he had designated a portion of his retirement for her as they had agreed to in their divorce settlement.  He even provided her a copy of the Survivor Benefit Plan (SBP) Open Enrollment Election, DD Form 2618, as proof of his actions.  She provides the divorce decree as supporting evidence.

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

He was born on 28 February 1928.  He initially served on active duty from September 1950 – September 1953.  He enlisted in the Army National Guard on 23 June 1955.  He and the applicant married on 30 July 1955.

The divorce decree indicates that the proceeding was heard on 3 December 1976 but apparently the final judgment was dated 19 January 1977.  In two separate places, the decree states “…military retirement, and the Court reserves jurisdiction to determine the same based upon the length of the marriage from 7/30/55 to 9/30/70.”  The significance of the ending date of 30 September 1970 cannot be determined.  The decree states in pertinent part “Respondent is awarded as her sole and separate property the following:…her community interest in petitioner’s federal military retirement…”

The FSM was transferred to the Retired Reserve on 19 August 1981.

On 7 December 1987, the FSM completed a Data for Payment of Retired Army Personnel, DA Form 4240.  He indicated he was not married and declined to participate in the SBP.  His Application for Retired Pay Benefits, DD Form 108, indicates that a DD Form 1883 (Survivor Benefit Plan Election Certificate) was attached but no DD Form 1883 is available in his records.  

The DD Form 2618 provided by the applicant is dated 26 March 1993 and indicates that the FSM elected former spouse coverage at this time.  However, the Defense Finance and Accounting Service (DFAS) stated that no costs for this coverage was ever deducted from his military retired pay account.  DFAS also indicated that their records show that there was never a division of his retired pay.

The FSM died on 20 April 1999.

Public Law 95-397, the Reserve Component SBP, 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. 

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

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.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

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 this requirement.

2.  The FSM and the applicant divorced in 1977, prior to the establishment of SBP for reservists.  The divorce decree awarded the applicant a portion of the FSM’s retired pay (based upon 15 years of marriage); it did not award her the SBP.  It appears the FSM did not provide a designated portion of his retired pay to the applicant when he became eligible for retired pay in 1988.  

3.  The applicant provides a DD Form 2618 dated March 1993 from which it would appear that the FSM intended to provide the SBP for the applicant.  However, for six years until his death in 1999 the FSM never paid SBP premiums.  Presumably, if he had intended to enroll for former spouse coverage and the DD Form 2618 had been lost, the FSM would have realized from his annual statement of his retiree pay account that no premiums were being deducted.  Since it appears he never questioned such a discrepancy, combined with his failure to provide the applicant with a portion of his retired pay as he was required to do under the terms of the divorce, the Board concludes that it was never his intention to provide for the coverage.

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___  __rks___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058982	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.