MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 March 2003                  
	DOCKET NUMBER:   AR2003083380

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Raymond V. O'Connor		Member	
	Ms. Eloise C. Prendergast		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 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 she was not aware that military retired pay is considered joint property until she read about it in the newspaper.  The FSM did not inform her of her right regarding this.  She did not ask for alimony and only asked the minimum child support payment for four children.  After the FSM developed dementia, she ended up taking care of him until he died.

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

He had prior service from 26 August 1952 until 20 March 1961.  It is not known when he and the applicant married.  It may have been between February 1959 (when a document in his records shows he was working with a German lawyer to obtain an annulment) and May 1962 (when their first child was born).  He reenlisted on 4 April 1961.  

The FSM retired on 1 October 1972 after completing 20 years of active Federal service.  His DA Form 4240 (Data for Payment of Retired Personnel) is not available.  Records at the Defense Finance and Accounting Service (DFAS) show that he enrolled in the SBP for spouse only coverage at that time.

The FSM and the applicant divorced on 12 October 1977.  The divorce decree does not mention the SBP.  Records at DFAS show that SBP premium deductions stopped at that time.

The FSM died on 11 February 1997.  

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty 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), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, enacted 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 about 12 years of the FSM's 20-year military career.

2.  Unfortunately, the FSM and the applicant divorced prior to the establishment of SBP coverage for former spouses.  The FSM did not inform her of this right because it did not exist at the time they divorced.  The evidence of record shows he stopped paying SBP premiums after their divorce.

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

__jhl___  ___rvo__     __ecp_      DENY APPLICATION

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

INDEX

CASE ID	AR2003083380	
SUFFIX		
RECON		
DATE BOARDED	20030327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.