RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            25 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003090840

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  In effect, the applicant requests that the records of her ex-spouse, a former service member (FSM) now deceased, be corrected to show that he enrolled in the Survivor Benefit Plan (SBP), and that she receive the annuity from that program. 

2.  The applicant states that she was married to the FSM in 1961 and divorced in 1984.  They had two children, his only children.  His widow, "LSD," has applied for the SBP annuity.  They were filing for divorce, and she and the FSM were separated when he reached age 60, which was probably the reason he did not offer her a chance to decline the SBP annuity.  His children should have the opportunity to file [make an election], since she was married to him during his      20 years of service in the National Guard.  His only daughter has had colon cancer and is still very sick and needs any financial aid that she can receive.

3.  The applicant provides a copy of the certificate of death showing that the FSM died on 13 June 2002, a copy of a certificate of marriage showing that she and the FSM were married on 21 July 1961, and a copy of an undated modification of a [divorce decree] which indicates that the applicant and the FSM were divorced on 6 April 1984. 

CONSIDERATION OF EVIDENCE: 

1.  On 1 April 2003 the Board determined that the FSM's widow, "LSD," should be paid the SBP annunity retroactive to 13 June 2002, the date of the FSM's death (AR2002081966).

2.  The FSM's record of emergency data, which he completed on 15 March 1987 shows that he was divorced, and that he had a daughter born in 1962 and a son born in 1972. 

3.  The FSM's 17 August 1998 chronological record of military service shows that he had 20 qualifying years of service for retired pay at age 60 through his retirement year ending date of 29 June 1989.  On 11 July 1989 he was notified of his eligibility to receive retired pay at age 60 (20 year letter).

4.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act  (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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.
5.  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.

6.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

7.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.

8.  Eligible children will receive a survivor benefit payment only if a spouse is no longer eligible by reason of remarriage before age 55 or death.  Payments will be made to unmarried children until they reach age 18 (age 22, if in school). 

9.  10 U.S.C., Section 1448, states that a person who has a former spouse upon becoming eligible to participate in the SBP may elect to provide an annuity to that former spouse.  Such an election prevents payment of an annuity to his current spouse.   

10.  10 U.S.C., chapter 73, requires that written consent of the spouse is required whenever the Soldier elects less than full SBP coverage for the spouse. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM was ineligible to elect coverage under the SBP until 1989 when he had 20 qualifying years of service for retired pay at age 60.  At that time he had been divorced from the applicant for approximately five years.  There was no requirement for him to elect SBP coverage for his former spouse, and as he indicated in his 1989 election, he had no intention of doing so, nor did he do so.  Nor was there a requirement for him to do so in 1998 when he reached age 60.  

2.  The Board determined on 1 April 2003 that the FSM's widow should receive the SBP annuity, in accordance with the provisions of 10 U.S.C.  The applicant has not provided any evidence or good reason for the Board to overturn that decision.    

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __LEM __  __YM ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2003090840	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031125	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.18	
2.		
3.		
4.		
5.		
6.