MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 September 2003                   
	DOCKET NUMBER:    AR2003091218

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:
	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		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:  Reconsideration of her earlier appeal to have the records of her deceased former spouse, a former service member (FSM), corrected to show he elected to participate in the Survivor Benefit Plan (SBP).  

APPLICANT STATES:  In effect, that she was married to the FSM for over 
40 years, 30 years of which he spent in the military.  They were still married at the time of his retirement in 1980 and continued to reside together in Leesville, Louisiana until 1982.  At that time, the FSM abandoned the household without notice.  His whereabouts remained unknown for over 15 years and all attempts to locate him were unsuccessful.  She claims that while she was trying to obtain a lawful divorce, the FSM was located in Texas; however, when attempts were made to serve him with the proper papers, he fled that State.  Finally, the FSM was located and properly served the papers in Mississippi and at that time he indicated that he would not attend the divorce proceedings. After four years of searching and researching, a judge in Louisiana granted the divorce in 2000.  The FSM died in Mississippi on 24 December 2001.  She claims that she continues to reside in Louisiana, the State where they last domiciled together and she has never left the State.  

The applicant further indicates that she is requesting reconsideration because she was never notified by the Army or anyone else of her former spouse’s  election to decline to participate in the SBP.  She claims that at the time this declination election was made, the FSM maintained a separate post office box at which he received all his Army mail and his paycheck.  She also states that she did not have access to this mailbox and although records indicate that the SBP declination notification letter was sent to her residence, she never received it and assumes it was sent to this other mailbox address.  She also states that the only mail she ever received from the government was her monthly allotment checks.  Furthermore, her former spouse was not available for her to consult on the SBP election.  She claims that the first time she was aware of the SBP was in 1996.  At that time she queried officials at the Fort Polk, Louisiana retirement center in regard to getting a divorce and on the benefits available to her.  She states that these officials helped her in the preparation of a letter requesting her husband’s finance records.  It was at this time that she was informed there was a SBP declination notification letter on file.  When asked if she had received this letter, she responded that she had not.  She was then counseled on getting a divorce and getting a judgment that would entitled her to receive SBP benefits.  

The applicant concludes her statement by indicating that the FSM was not a uniformed service member when she received her divorce and she was not a former spouse until the divorce judgment was made.  She claims the State of Louisiana had jurisdiction over the FSM by virtue of his residence in the State at the time of their marriage and for a period subsequent to his retirement.  She states that the FSM abandoned his family and the court could not be expected to require a spouse to fly all over the country to obtain jurisdiction over a person that cannot be located or to continuously file for proceedings in one State or another as the fleeing spouse moves.  She states that she was informed by a major in the legal office at Fort Polk that the jurisdiction issued could be fixed by an official in legal services.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002070203) on 30 January 2003.

On 2 November 1950, the FSM entered active duty in the Regular Army.  After a 24 day break in service between 2 and 25 August 1952, he reentered active duty and served continuously until his retirement on 30 November 1980.  The applicant and FSM were married on 2 August 1954.  

In connection with his retirement, the FSM elected to decline participation in the SBP.  The applicant was unavailable for counseling and was informed of the FSM’s SBP election in a letter, dated 20 October 1980.  

In August 1996, the applicant petitioned the District Court of Louisiana for a divorce.  In March 1998, the applicant filed an amended petition in the same court requesting 50% of the FSM’s retired pay.  On 30 March 2000, the applicant was awarded a divorce against the FSM and a judgment was rendered in favor of the applicant for 50% of the FSM’s retired pay from the date the FSM began receiving such payments.  The judgment also included “paid annuity for the surviving spouse”, which can fairly be read as referring to the SBP.  The FSM lived outside the State of Louisiana at this time and did not participate in the court action.  

The applicant contacted the Defense Finance and Accounting Service (DFAS) seeking direct payment of the 50% of the FSM’s retired pay.  DFAS informed the applicant that the court documents provided failed to meet the jurisdictional requirements of the Uniform Services Former Spouse’s Protection Act (USFSPA), which was the law governing these actions, and her claim could not be paid.  

The FSM died on 24 December 2001, and there is no evidence to show he ever participated in or agreed to the Louisiana court proceedings or the final divorce judgment.  

On 30 January 2003, this Board considered the applicant’s petition to correct the FSM’s record to show he elected to participate in the SBP.  The Board considered the applicant’s claim that she was never notified of the FSM’s decision to decline SBP coverage.  However, after a careful review of all the evidence, the Board concluded that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.   

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 carefully considered the issues raised by the applicant in her reconsideration request and determined that there were no new issues or argument that was not considered and addressed by the Board during its original review of this case on 30 January 2003 (AR2002070203).   

2.  The evidence of record shows that the FSM elected not to participate in the SBP and the applicant was informed of this decision by letter in accordance with the processing procedures in effect at the time.  There is no indication that the applicant questioned this election at the time of the FSM’s retirement or in the years that passed prior to her filing for divorce in 1996.  Given the lack of evidence to corroborate the applicant’s claim that the FSM willfully denied her information on the SBP election he made at retirement, the Board finds an insufficient evidentiary basis to support granting the requested relief at this time. 

3.  Further, as the applicant was advised in the Board’s 30 January 2003 decisional document, the law does not authorize courts to award SBP to a former spouse if the FSM did not elect to participate in the SBP at the time of retirement.  Further, the jurisdiction requirements of the USFSPA, which is the law governing SBP benefit entitlement of former spouses of retired military members was not satisfied by the Louisiana court in this case.  

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  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

__FE__  ___KH__  ___MM_ _     DENY APPLICATION

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

INDEX

CASE ID	AR2003091218	
SUFFIX		
RECON		
DATE BOARDED	2003/09/	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000	
2.		
3.		
4.		
5.		
6.