MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  4 June 2002
	DOCKET NUMBER:  AR2002066936

	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. Jennifer L. Prater		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Arthur A. Omartian		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 former husband, a deceased former service member (FSM), be corrected to show that he changed his Survivor Benefit Program (SBP) election to former spouse.

APPLICANT STATES:  In effect, that she and the FSM were divorced on 12 January 1998 and the FSM died on 26 May 2001.  Since the FSM never remarried the records should be corrected to show her entitlement to his SBP.

COUNSEL CONTENDS:  Counsel offers no additional information.

EVIDENCE OF RECORD:  The deceased former service member's military records show:

He retired from active duty on 30 September 1977 in the pay grade of E-8 with over 20 years and 8 months active duty.  At the time of his retirement he was married and elected SBP coverage for his spouse.

The applicant submits evidence that shows that she and the FSM were married on 9 July 1994.  Information provided by the Defense Finance and Accounting Service (DFAS) showed that in July 1995, the FSM elected SBP coverage for the applicant.  There is no evidence of record to show when the FSM's marriage to his spouse at the time of his retirement was dissolved or if the FSM was directed by a court to maintain SBP coverage for that former spouse.

The applicant provides a copy of the Decree of Divorce, dated 12 January 1998, and the Agreement, dated 15 May 1997, between herself and the FSM.  The Decree of Divorce states that the Property Settlement Agreement of 15 May 1997 was approved and judicially sanctioned by the court was made an order of the court by reference.  Neither the Decree of Divorce nor the Agreement makes any mention of the SBP by direct reference or inference.

Information provided by the DFAS showed that effective January 1998 the SBP payments made by the FSM were suspended because there was no legal annuitant.  There is no evidence of record that the FSM or the applicant ever requested that SBP coverage be changed to former spouse.

The Certificate of Death provided by the applicant shows that the FSM died on 26 May 2001.  The certificate shows that he was divorced at the time of his death.

Public Law 92-245, 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.  An election, once made, was irrevocable except in certain circumstances.  SBP coverage is suspended when there is no eligible beneficiary.

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 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect to resume spouse coverage.  Changes must be made prior to the first anniversary of remarriage.

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.

Title 10, U. S. Code, section 1448(b)(3) incorporated the provisions of the Uniformed Services Former Spouses Protection Act 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. 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.

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 record to show that the FSM ever elected to change his SBP coverage from spouse to former spouse.

2.  There is no evidence submitted by the applicant to show that SBP coverage for her as a former spouse was directed or addressed in the Decree of Divorce or the 15 May 1997 Agreement that was made an order of that court.

3.  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.

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

__jp___  ___rs___  __ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066936	
SUFFIX		
RECON		
DATE BOARDED	20020604	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.