MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 July 2003       
	DOCKET NUMBER:   AR2003084955

	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:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen Y. Fletcher		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 from spouse and children to former spouse and children.

APPLICANT STATES:  That the divorce decree awarded her the SBP.  After the FSM's death, she found that he had changed some paperwork and she was not made aware of the change.  She found a letter implying that she was not alive.

As supporting evidence, the applicant provides a portion of the divorce decree; the FSM's last DD Form 214 (Certificate of Release or Discharge from Active Duty); the FSM's death certificate; a letter, dated 24 January 1995, from the Defense Finance and Accounting Service – Indianapolis Center (DFAS-IN) to the FSM; an extract from an Internet site explaining the SBP; the FSM's VA Form  29-8286 (Servicemen's Group Life Insurance Election) dated 2 July 1979 showing he had elected "by law" coverage; the FSM's DD Form 93 (Record of Emergency Data) dated 2 July 1979 (showing the applicant as his spouse); the FSM's Retiree Account Statement effective March 1990 (showing his spouse SBP costs were decreased due to a law change); and the FSM's Retiree Account Statement effective 1 November 1995 (showing he was paying child only SBP costs).

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

He enlisted in the Regular Army on 23 August 1968.  He retired on 1 January 1990.  At that time, he elected to participate in the SBP for spouse and children coverage, full base amount.

The FSM and the applicant divorced on 23 November 1993.  The provided portion of the divorce decree states in pertinent part, "Plaintiff is hereby awarded those retirement benefits she may be entitled to from the U. S. Army because of her marriage to the defendant."

By letter dated 24 January 1995, DFAS-IN informed the applicant that they had suspended the SBP costs for his spouse coverage due to the loss of his spouse.

On 20 February 1996, the FSM died.  The death certificate shows his marital status as divorced.  DFAS – Cleveland Center confirmed that no one is receiving the SBP annuity.

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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

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 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 has carefully considered the portion of the divorce decree provided by the applicant; however, it cannot be determined from the wording of the applicable portion that the court awarded her the SBP.  The SBP is not specifically mentioned.  The wording "those retirement benefits she may be entitled to" is vague and could refer to a portion of the FSM's current retired pay or to a military identification card and related privileges.

2.  It appears to the Board that the FSM did not believe that the divorce decree awarded the applicant the SBP.  It appears he provided a copy of the divorce decree to DFAS without making a written request (as required by law) to change his SBP coverage to former spouse and children.  (The Board notes that when DFAS is informed that SBP costs should be suspended due to the death of a spouse, DFAS's response to the member usually includes a message of condolence.  It appears to the Board that DFAS-IN's 24 January 1995 letter referring to the "loss" of the FSM's spouse only meant his loss, through divorce, of an eligible spouse beneficiary.)  There is no evidence to show that the FSM ever attempted to have that SBP coverage reinstated to provide coverage for the applicant as a former spouse.

3.  If the applicant was aware that the divorce decree awarded her the SBP, she or her attorney could have made a written request for a deemed election.  There is no evidence to show that she or her attorney did so.

4.  There is no evidence to show that the SBP may have been mentioned in subsequent court orders.

5.  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

__tsk___  __mhm___  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084955	
SUFFIX		
RECON		
DATE BOARDED	20030701	
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.