MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 June 2002
	DOCKET NUMBER:   AR2002068815

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Harry B. Oberg		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 neither she nor the FSM remarried.  The FSM suffered from schizophrenia, which prevented him from thinking clearly.

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

He enlisted in the Regular Army on 10 November 1976.  

On 12 December 1978, a medical evaluation board (MEB) found the FSM to be medically unfit with a diagnosis of schizophrenia, paranoid, type, acute, moderate, treated, and improved and referred him to a physical evaluation board (PEB).  The MEB considered him to be mentally competent for pay purposes and to have to capacity to understand the nature of and cooperate in board proceedings.

On 9 January 1979, a PEB found the FSM to be physically unfit with a diagnosis of paranoid schizophrenia, acute.  He was released from active duty on              12 February 1979 and placed on the Temporary Disability Retired List (TDRL).  At that time, he elected to participate in the SBP for spouse and children coverage, reduced base amount ($6.56).  At that time, he had two dependent children, born in 1973 and 1976.  

On 28 July 1982, the FSM received a TDRL re-examination.  At that time he was deemed to be competent to handle his own funds and affairs.  A concurrent diagnosis of chronic paranoid schizophrenia, well controlled on minimal drug and counseling therapy, was considered appropriate.  On 30 April 1983, the FSM was removed from the TDRL and permanently retired with a 30 percent disability rating.  

The applicant provides a 3-page divorce decree indicating she and the FSM divorced on 15 April 1998.  The decree indicates there was one 
minor child, born on 18 September 1985.  The decree does not mention the SBP.

The FSM died on 28 October 2001.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The term “dependent child” means a person 

who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.  The base amount is the amount of retired pay (in dollars) on which participation is based.  By law, the minimum base amount is $300.00.

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.  The evidence of record shows that the FSM elected spouse and children coverage for a reduced base amount (although he designated an improper reduced amount).  Both at the time of his SBP election and when he received his TDRL re-examination in 1982, he was found by military medical personnel to be mentally competent for pay purposes and to handle his own affairs.

2.  There is no evidence to show the FSM was not mentally competent when he and the applicant divorced in 1998.  The divorce decree did not award the SBP to the applicant.  In any case, the decree indicates that the FSM had a dependent child, born in 1985, who was still an eligible SBP beneficiary at the time of his death.  Granting the applicant the relief requested would deny the lawful beneficiary’s right to the SBP.

3.  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__  __RWA__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068815	
SUFFIX		
RECON		
DATE BOARDED	2002/06/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.