MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 September 2002
	DOCKET NUMBER:   AR2002071961

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Karen A. Heinz		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 his Survivor Benefit Plan (SBP) coverage be changed to former spouse coverage.

APPLICANT STATES:  That the divorce decree ordered him to keep his former spouse as the SBP beneficiary.

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

He enlisted in the Regular Army on 15 July 1975.  He married on 1 July 1977.  He retired on 1 March 1996.  At that time, he completed a Data for Payment of Retired Personnel, DD Form 2656, and elected to participate in the SBP for children only coverage, full base amount.  His spouse did not concur in his election and instead concurred in an election of spouse and children coverage, reduced coverage ($600.00).

The applicant divorced on 29 January 1998.  The divorce decree ordered that his spouse remain the beneficiary of his SBP.

The applicant remarried in September 1999.  Neither he nor his current spouse responded to a letter requesting her concurrence with his request to change his SBP coverage to former spouse coverage.  

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

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 but effective 1 March 1986, required the spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.  It also permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse.  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

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 member was participating in the SBP 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.  The Board concludes that an injustice has occurred in this case but will not take corrective action because that action would cause another injustice.

2.  Although the applicant does not explain why he did not make a former spouse election within one year of the date of his divorce and there is no evidence to show his former spouse attempted to make a deemed election within one year of the divorce, it appears to now be his intent to comply with the divorce decree.  

3.  However, there is no evidence to show the applicant elected through the procedure prescribed by law not to provide spouse coverage within one year of his remarriage.  Therefore, his current spouse automatically acquired spouse coverage on the first anniversary of his remarriage.  To grant the applicant’s request at this date would constitute an unconstitutional taking from his current spouse.

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

__EJA__  __TBR___  ___KAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071961	
SUFFIX		
RECON		
DATE BOARDED	2002/09/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.