MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 August 2002
	DOCKET NUMBER:   AR2002070597

	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	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 they were divorced after 35 years of marriage and she was awarded the RCSBP benefits in the divorce decree.  She believes the FSM intended for her to have this benefit but assumed that as long as he was paying the premium and the court ordered it that no other action was necessary.  He married again in February 1998.

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

He was born on 23 October 1935.  After having had prior service in the Air Force and Regular Army, he enlisted in the Army National Guard on 4 June 1984.  The applicant’s marriage certificate is not available but she was married to the FSM at the time of his 1984 enlistment.

The FSM’s notification of eligibility for retired pay at age 60 is dated 4 May 1990. Records at the Defense Finance and Accounting Service (DFAS) show that he enrolled in the RCSBP at that time for spouse only coverage, option C.

The FSM and the applicant divorced on 9 January 1998.  The copy of the Settlement Agreement provided by the applicant contains a handwritten annotation (initialed by both the FSM and the applicant) that, “Husband agrees to not remove wife from his military benefit of Surviving Benefits Package.”

The FSM apparently remarried in February 1998.  He died on 20 December 2001.

DFAS verified that the FSM’s widow has not submitted a claim for the SBP annuity as of 31 July 2002.

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.  

Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, suspended spouse costs if marriage ends in death or divorce.  It also reduced the waiting period for a new spouse’s eligibility from two years to one year following post-retirement marriage.  

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.  

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP for former military spouses for retiring members.  

Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members (Reservists, too).

Public Law 99-661, enacted 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.

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.  When the FSM and the applicant were divorced in January 1998, the Settlement Agreement contained a handwritten annotation, initialed by both the FSM and the applicant, that the FSM agreed to not remove the applicant from his SBP.  Although SBP elections are made by category and not by name, it is somewhat reasonable to presume that the FSM believed that as long as he continued to pay spouse premiums his former spouse, the applicant, would remain as his SBP beneficiary.

2.  Unfortunately, federal law clearly required that the FSM make a written application to the Army to have his SBP election changed from “spouse” to “former spouse.”  If he failed or refused to do so, federal law clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made.  The law also provides, however, 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.  In this case, the law’s one-year time limit to request a deemed election expired on 9 January 1999.

3.  It appears the FSM remarried in February 1998.  At the first anniversary of his remarriage, his second spouse became the lawful beneficiary of his SBP.  The Board is cognizant of the fact 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 and it appears the applicant was married to the FSM for the majority of his military career.  However, although it appears she has not yet submitted a claim for the annuity, the FSM’s widow is the legal beneficiary.  Absent a statement from the widow asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, 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.

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__  __ TSK  _  _ _LEM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002070597	
SUFFIX		
RECON		
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.