MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           18 November 2003
		DOCKET NUMBER:  AR2003088931

	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. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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 her children, as the children of her deceased spouse, a former service member (FSM), be determined to be eligible for the Survivor Benefit Plan (SBP) annuity.

APPLICANT STATES:  That she married the FSM on 26 March 1990 and had two children with him.  One child is 13 years old and the other 17 years old.  She feels they are due some benefits from the death of their father.  As supporting evidence she provides his death certificate; a certification of their marriage; an application for social security benefits; copies of her and her children's military identification and social security cards; and copies of the FSM's military identification card and insurance cards.

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

After having had prior service, he enlisted in the Regular Army on 18 August 1954.  Records at the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) show he married Virginia in 1958.  He retired by reason of physical disability on 5 January 1973.

Records at DFAS-CL show the FSM enrolled in the SBP in March 1973 for spouse and children coverage.

The applicant provides an English translation of a document that certifies the applicant and the FSM were married in Costa Rica on 26 March 1990.

Records at DFAS-CL show the FSM and Virginia divorced in 1999.  The divorce decree is not available but it apparently awarded the SBP to Virginia.  Virginia made a request for a deemed election of the SBP on 5 October 2000.

The FSM died on 27 January 2003.  The death certificate shows he was married to the applicant at the time.

Records at DFAS-CL show the SBP is being paid to Virginia as the former spouse.

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  

The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.

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 99-661, 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.  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.  

Title 10, U. S. Code, section 1448(b)(4) states that a person who elects to provide an annuity for a former spouse may, at the time of the election, elect to provide coverage under that annuity for both the former spouse and a dependent child if the child resulted from the person's marriage to that former spouse.

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.  Records at DFAS-CL show the FSM elected to participate in the SBP for spouse and children coverage in 1973.  He married the applicant in 1990 although there is a question as to the status of his marriage to the applicant.  Records at DFAS-CL show the FSM divorced Virginia in 1999, nine years after his marriage to the applicant.  Virginia made a request for a deemed election of the SBP as a result of that divorce.

2.  By law, a person who elects to provide an annuity for a former spouse may  elect to provide coverage for both the former spouse and a dependent child but only if the child resulted from the person's marriage to that former spouse.  
3.  The applicant's children lost eligibility to the SBP once the FSM's SBP coverage was changed to former spouse coverage.  

4.  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

__jns___  __mdm___  __bje___  DENY APPLICATION

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

INDEX

CASE ID	AR2003088931	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.