MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002068814

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse coverage.

APPLICANT STATES:  That the FSM thought he had made a permanent and irrevocable election and that the RCSBP annuity would go to her without it needing to be changed to former spouse coverage.  They discussed this during the divorce proceedings.  He wanted her to have it since she was there to help and support him during the 20 years he was in the Army National Guard.  Although they went through unfortunate times and divorce, they cared for each other and their child very much.  She provides a sworn affidavit from the FSM’s brother, an attorney licensed to practice law in North Carolina.  He swears that the FSM contacted him in October 1991 with respect to advice and counsel in making his will.  The RCSBP annuity was specifically discussed.  Disposition of this annuity was not made part of his will because he believed that, under the clear and unambiguous language of the Survivor Benefit Plan Election Certificate, DD Form 1883, the benefits of the RCSBP annuity would pass outside the will, like his insurance benefits, to his previously designated beneficiary:  his ex-wife, the applicant.  At the time of the dissolution of their marriage, no property settlement was executed because the FSM wanted the applicant (the mother of his only child) to receive everything they owned at the time and he simply relinquished title to their property to her without court order.

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

He enlisted in the Army National Guard on 18 July 1960.  He and the applicant married on 10 August 1963.  He was discharged from the Army National Guard on 4 October 1980.  His notification of eligibility for retired pay at age 60 (his    20-year letter) is dated 13 February 1981.  On 26 February 1981, he completed a DD Form 1883.  He elected spouse only RCSBP coverage, full base amount, option C.  

The FSM and the applicant divorced on 10 July 1984.  The divorce decree is not available but apparently the RCSBP was not mentioned.  The FSM remarried on 20 September 1985.  He died on 21 December 1998.

The FSM’s widow submitted an application dated 14 April 2002 (AR2002074719) to the Board requesting she be granted the RCSBP annuity.

Public Law 95-397, the RCSBP, 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.  Elections are made by category, not by name.  Changes in SBP options are not authorized except in specific instances or 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 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.  The Board agrees with the FSM’s brother’s contention that the language of the DD Form 1883 was clear and unambiguous.  The FSM elected spouse only coverage.  The applicant was the FSM’s spouse at that time.  However, once they divorced, she was no longer his spouse and so not entitled to be a spouse only beneficiary.  His brother is correct in presuming that the benefits of the RCSBP annuity would pass outside the will.  Even if the will had “granted” the RCSBP to the applicant, she could not have received it because, again, she was not his spouse.

2.  While 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 lawful beneficiary of the FSM’s RCSBP is eligible to receive the annuity.  Absent a statement from the FSM’s widow asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, (and she has indicated to the Board that she does not desire to renounce the annuity), the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

3.  Regrettably, 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__  __RTD__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068814	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.