MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 October 2001                  
	DOCKET NUMBER:   AR2001061276

	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 J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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 the records be corrected to show she made a deemed election for the Survivor Benefit Plan (SBP) annuity of her deceased former spouse, a former service member and that she be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). 

APPLICANT STATES:  That after 30 years of marriage she filed for divorce due to the FSM’s abusive behavior over many years.  Her attorney did not know military law and she was too sick to know her rights.

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

He initially entered active duty in December 1948 and was released from active duty on 2 March 1950.  He reenlisted on 26 March 1950.  He and the applicant married on 12 October 1951.  He retired in January 1969.  On 1 February 1971 he was voluntarily recalled to active duty.  He was released from active duty on   3 February 1972.

The FSM was never enrolled in the SBP.

On 12 March 1982, the FSM and the applicant divorced.  The divorce decree does not mention the SBP.

The FSM died on 4 May 1994.  The death certificate lists the applicant as the FSM’s wife; however, there is no evidence and the applicant does not contend that they remarried.

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

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.

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.

Army Regulation 600-8-14 prescribes policies and procedures for using and preparing identification documents and DEERS.  In pertinent part, it states that DEERS is a congressionally mandated program established to improve the control and distribution of available uniformed services benefits and privileges.  Enrollment in DEERS is mandatory for persons entitled to receive uniformed services benefits and privileges and Veterans’ Affairs benefits.  The Uniformed Services Identification and Privilege Card, DD Form 1173, may be issued to an unremarried former spouse who was married to an FSM for a period of at least 20 years and the period of overlap of marriage and the FSM’s creditable service was at least 15 years but less than 20 years and the final decree of divorce was before 1 April 1985.  Medical care may be authorized under certain conditions.

The U. S. Total Army Personnel Command, Identification Cards Policy office has stated that it appears the applicant, if she has not remarried, may be eligible for enrollment in DEERS.  She should visit the nearest Army installation (Headquarters, Southern Command in Miami, FL (305) 437-2718 or Fort Rucker, AL (334) 255-2182) with the death certificate, marriage certificate, divorce decree, a photo identification, and, if eligible for Medicare, her Medicare card.

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.  There is no evidence of Government error in this case.

2.  The FSM retired prior to enactment of the SBP.  When the SBP came into effect on 21 September 1972, the FSM failed to enroll during the established Open Season.  This fact would have prevented a state court from ordering SBP coverage for the applicant upon their divorce in 1982, even if she had not divorced the FSM prior to establishment of SBP coverage for former spouses, making the deemed election provision inapplicable.  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.  He never paid SBP premiums and there is no evidence to show that it was his intention to provide such coverage.

3.  It appears that the applicant, if unremarried, may be eligible for enrollment in DEERS.  Recommend she contact one of the Army installation offices identified above for further information and processing for enrollment.

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

__rjw___  __kan___  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061276	
SUFFIX		
RECON		
DATE BOARDED	20011025	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.