MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2001                   
	DOCKET NUMBER:   AR2001060366

	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. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		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 did not cancel his Survivor Benefit Plan (SBP) coverage but instead changed it to former spouse coverage.

APPLICANT STATES:  That she and the FSM married on 4 January 1947.  The FSM enrolled in the SBP in 1972.  They both understood the election to be permanent and irrevocable.  When they divorced in 1973, they discussed the SBP.  She did not seek alimony, only child support, believing that the annuity would be more beneficial to her in her later years than alimony at the time of the divorce.  She is now told that the SBP should have been designated in the divorce decree and that the FSM cancelled the SBP in October 1996.  She was advised that she should have been made aware of the cancellation and been given a year to either assume the premium payment or to consent to his cancellation.  The FSM remarried in 1975 and his wife died several years ago.  The applicant does not know if the cancellation was before or after the second wife’s death.  She states that she also remarried but in 1976 discovered that marriage may have been a bigamous relationship.  She provides her second husband’s separate maintenance decree for his previous wife dated 21 June 1972 but not his divorce decree or any dissolution of (her) marriage (to the second husband) paperwork.

EVIDENCE OF RECORD:  The FSM military records show:

After having had prior active and inactive service in the Army and in the U. S. Marine Corps, he reentered active duty on 24 November 1951 as a commissioned officer.  He retired on 30 November 1963.

In October 1972, the FSM was notified that he had the opportunity to enroll in the SBP for one of four coverage options – spouse only, spouse and children, children only, or insurable interest.  The Survivor Benefit Plan Election Certificate by Existing Retiree is not entirely clear but it appears he enrolled in the SBP for spouse only coverage.

On 16 August 1973, the FSM and the applicant divorced.  The FSM apparently remarried in 1975.  The FSM’s second spouse apparently died in October 1996.  Records at the Defense Finance and Accounting Service show that the FSM’s spouse coverage was suspended effective 12 October 1996 as he had no eligible beneficiary.  The FSM died on 13 March 2001.

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.  It declared a 12-month Open 

Season for those members who retired prior to enactment of the law.  Elections are made by category.  An election, once made, is permanent and irrevocable except under certain circumstances.  Coverage is suspended during any period of time there is no 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 (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.

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.  SBP elections are made by category, not by name.  In 1972 the FSM enrolled in the SBP for spouse coverage.  When he and the applicant divorced in 1973, she was no longer his spouse so she was no longer the SBP beneficiary.  Since former spouse coverage for retired members was not established until September 1983, it would not have been possible for the FSM to designate her as a former spouse beneficiary at the time of the divorce.

3.  When the FSM remarried, his new spouse became his SBP beneficiary.  When she died, his SBP coverage was suspended, not cancelled, because he no longer had a spouse.  There was never a requirement for the applicant’s consent to be obtained or even for her to be notified of these changes.  

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:

________  __cg____  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jrs___  ________  __lls___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060366	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.