MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 April 2002                   
	DOCKET NUMBER:   AR2002066395

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		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 of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

APPLICANT STATES:  That the FSM signed up for the SBP when he retired and premiums were withheld from his retirement check every month and continued in force after their legal separation/divorce.  She is listed in item 10, section III of the Survivor Benefit Plan – Election Certificate, DD Form 1883.  The FSM did not indicate that he cancelled or intended to cancel the SBP or remove her name as beneficiary following their divorce or anytime prior to his death.

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

He entered the Regular Army on 13 February 1954.  He and the applicant married on 24 January 1966.  He retired on 1 March 1974.  At that time, he completed a DD Form 1883 electing to participate in the SBP for spouse and children coverage, full base amount.

On 12 July 1977, the applicant and the FSM divorced.  A decree of divorce A Mensa Et Thoro (not a final divorce) was granted.  On 8 January 1985, a final decree of divorce was granted.  Neither decree mentioned the SBP.  

The FSM died on 8 November 1998.

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, not by name, and are irrevocable except under certain circumstances or as authorized by 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 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

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

2.  SBP elections are made by category (such as spouse, spouse and child, or former spouse), not by name.  At the time of the FSM’s and the applicant’s initial divorce action in 1977, coverage for former spouses was not authorized.  At the time of the final decree of divorce in 1985, state courts were not permitted to order SBP coverage without the member’s consent.  Such a change would have had to have been a strictly voluntary action on the part of the FSM, which change the evidence of record shows he did not make.  The applicant ceased to be an eligible SBP beneficiary upon their divorce.

3.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for 8 years of his 20-year military career.  The Board does not find that equity would be served by granting the applicant the relief requested.

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

__fne___  __bje___  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066395	
SUFFIX		
RECON		
DATE BOARDED	20020418	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.