MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR1999031163

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 to former spouse coverage.

APPLICANT STATES:  That the divorce decree ordered the FSM to retain her as the SBP beneficiary and she had been receiving spousal support as ordered in the divorce decree up until his death.  

COUNSEL CONTENDS:  That the applicant is in dire need of the SBP to maintain her household and to pay her living expenses.

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

He enlisted in the Regular Army on 30 May 1946.  He and the applicant married on 22 May 1953.  He retired on 1 May 1971. 

On 1 October 1973, the FSM elected to enroll in the SBP for spouse and child coverage.

On 27 December 1983, the FSM and the applicant divorced.  The divorce decree states in pertinent part “Petitioner is awarded…One-half of Respondent’s Military Retirement benefits.  The right to Respondent’s Survivor Benefits earned during Respondent’s military service…”

On 2 February 1987, the U. S. Army Finance and Accounting Center responded to the applicant’s request for direct payments for the division of property from the FSM’s retired pay by informing her the court order would be honored and her payments would begin on or about January 1987.

The FSM remarried on an unknown date.

On 13 June 1999, the FSM died.  His surviving spouse is drawing his SBP annuity.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  Public Law 93-155, enacted 16 November 1973, extended the Open Season until 20 March 1974.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 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.

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

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.  At the time the FSM and the applicant divorced, state courts were not permitted to order SBP coverage.  Such a change would have had to have been a strictly voluntary action on the part of the FSM, which change the evidence of record shows he did not make.  The applicant could have requested a deemed election provided the FSM agreed to provide former spouse coverage; however, the Board recognizes that, since the applicant had to request direct payments of her portion of the division of his retired pay, he probably would not have agreed to provide such coverage. 

2.  The Board recognizes that the Army honored the divorce decree’s division of the FSM’s retired pay; however, this action was authorized by law in 1982.  

3.  In addition, since the FSM died with spouse coverage in effect, his legal spouse at the time of his death is the lawful beneficiary of his SBP.  The Board will not take any action to prevent the lawful beneficiary from becoming eligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

4.  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

__slp___  __lem___  __aao___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031163	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.