RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            4 December 2003        
	DOCKET NUMBER:   AR2003091605

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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.  The applicant requests that she be determined to be the beneficiary of the Survivor Benefit Plan (SBP) of her deceased spouse, a former service member (FSM).

2.  The applicant states that she and the FSM were married in January 1950, had four children, and, to her knowledge, they were legally married until his death in April 1996.  She never filed for divorce.  She was never issued any divorce papers.  She never signed any divorce papers.  Now the Government tells her that a woman overseas is on file as the FSM's wife.  If a divorce occurred, it is illegal.  She would not have agreed to a divorce without arguing the point for care for herself in her older age and for her entitlement to any survivor's benefits for herself and their dependent children.  In the FSM's later years, he became ill while he was still working in Korea.  In 1991, his military doctor in Korea suggested he be sent home to be cared for properly.  She cared for him and he lived in their home until 11 months prior to his death.  Upon his death, he was cremated.  After the FSM's death, she received his last retirement check.  She contacted the Government to inquire about survivor's benefits but was informed that another woman and address was on record as being the surviving spouse.

3.  The applicant provides the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 January 1964; their marriage license; his death certificate; a copy of a letter to her from the FSM dated 12 April 1983; a letter from the Chief, Army Retirement Services to the applicant dated 16 April 2003; a letter from the Defense Finance and Accounting Service (DFAS) dated 3 June 2002; a letter from the applicant to DFAS dated     15 May 2000; a disclosure/disclaimer form and a letter dated 22 April 1996 from the applicant authorizing the FSM to be cremated; two DFAS-CL Forms 5216/24 (Correspondence Transmittal/Request); a letter from the applicant to Army Retirement Services dated 13 January 2003; a copy of the applicant's military dependent identification card; and a letter from DFAS to the applicant dated        12 December 2002.

CONSIDERATION OF EVIDENCE: 

1.  The FSM enlisted in the Army on 24 January 1941.  He and the applicant married on 9 January 1950.  On 23 October 1963, the FSM requested extension of his foreign service tour in Korea.  He noted his marital status on this request as "separated."  On 1 November 1963, he applied for retirement and separation within Korea to accept lawful, gainful employment with a private industry.  He retired, in Korea, on 1 February 1964.

2.  On file in the FSM's records is a letter, dated 24 March 1965, from the applicant to the U. S Army Control Group (Retired), U. S. Army Records Center.  In the letter, the applicant stated that she was the wife of the FSM and did not know his whereabouts nor was she receiving any support for their two minor children.  By letter dated 28 April 1965, the applicant was informed that the FSM's latest address was Dependent Mail Section, in Korea.  It was suggested she write the Retired Pay Division, U. S. Army Finance Center for information pertaining to the FSM's pension.

3.  Documents obtained from DFAS show the FSM sued the applicant for divorce in the Seoul Family Court, Seoul, Korea and was granted a divorce on                11 January 1966.  The FSM remarried, in the city of Seoul, on 23 October 1970.  

4.  Information obtained from DFAS indicate their records show the FSM enrolled in the SBP in September 1972 for spouse coverage.  

5.  By letter dated 12 April 1983, the FSM wrote to the applicant.  In the letter, the FSM mentioned prior correspondence possibly referring to the applicant's application for a military identification card.  

6.  The FSM died on 22 April 1996.  Shortly thereafter, the FSM's spouse in Korea applied for the SBP annuity.  DFAS records show the spouse in Korea is currently receiving the SBP annuity.  Some time after that, the applicant contacted DFAS contesting the SBP being awarded to the spouse in Korea.  

7.  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.

8.  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).

9.  Army Regulation 600-8-14 (Identification Cards, Tags, and Badges) states that eligibility for reissue of a dependent military identification card may be verified using the DEERS (Defense Enrollment Eligibility Reporting System) database.  The application will be signed by the sponsor.  When the sponsor cannot appear personally before the verifying officer, the sponsor's signature must be notarized by a notary public.

DISCUSSION AND CONCLUSIONS:

1.  There is evidence to show the FSM obtained a divorce from the applicant in 1966 from a Korean court and married another lady in 1970.  He then enrolled in the SBP for spouse coverage during the first Open Season in 1972.  

2.  SBP coverage for former spouses of retired members was not established until 1983.  

3.  In the absence of evidence showing that the Korean divorce is invalid, it is presumed that the SBP annuity is being paid to the proper beneficiary.  

4.  The holding by the applicant of a military identification card is not necessarily proof that the Korean divorce is invalid.  It is likely the FSM signed an application for her to obtain the identification card without informing the individual witnessing his signature that he was no longer married to her.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kwl___  __wtm___  __alr___  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.

		__Walter T. Morrison  
		        CHAIRPERSON

INDEX

CASE ID	AR2003091605	
SUFFIX		
RECON		
DATE BOARDED	20031204	
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.