MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2002
	DOCKET NUMBER:   AR2002070887

	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. Roger W. Able		Member	
	Mr. John T. Meixell		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:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for former spouse coverage.

APPLICANT STATES:  Through her Representative in Congress, that she was married to the FSM for about 16 and ½ years of his military career.  The FSM repeatedly told her that she would be provided for by him in the event of his death.  Due to his career, she was compelled to do most of the raising of their three children and for much of her marriage she endured a great deal of verbal and physical abuse from him.

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

He enlisted in the Regular Army on 10 November 1954.  He and the applicant married on 29 January 1958.  Apparently, they were divorced from late 1971 until 9 March 1972, when they remarried.  

The FSM retired on 1 December 1974.  At that time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240, declining to participate in the SBP and electing his mother as his beneficiary for unpaid retired pay.  

The FSM and the applicant divorced on 26 July 1976.  On an unknown date, he remarried.  He died on 6 March 1981.  

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 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).

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 is cognizant of the fact the applicant was married to the FSM for the majority of his military career; however, the evidence of record shows that the FSM declined to participate in the SBP when he retired in 1974.  Even had he elected spouse coverage, the applicant would have lost her eligibility for the SBP annuity upon their divorce in 1976, since the law made no provisions for former spouse coverage until 1982, after he died.  

2.  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__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070887	
SUFFIX		
RECON		
DATE BOARDED	2002/06/20	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.