MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 2000                   
	DOCKET NUMBER:   AR1999031274

	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. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 elected Survivor Benefit Plan (SBP) former spouse coverage.

APPLICANT STATES:  That the divorce decree directed the FSM to maintain her as his SBP beneficiary.  However, when he forwarded the decree to the Army, he failed to send the page that pertained to the SBP.  In 1995 he requested a refund of what he had paid into the system.  To give another example of the FSM’s spitefulness, he cancelled the life insurance policy for their son, which he had agreed to maintain in the divorce decree, the month after the divorce.  At the time of the divorce, military spouses were not educated in their rights regarding such benefits.  She believes it would be a miscarriage of justice regarding her rights to the SBP if she were not to rightfully receive those benefits.  She provides as supporting evidence seven exhibits – 1.  the two pages of the divorce decree the FSM provided to the Army; 2. the death certificate; 3. the FSM’s DD Form 214 and retirement orders; 4. DA Form 4240, Data for Payment of Retired Personnel; 5. the complete divorce decree; 6. SBP printout; and 7. a letter dated 22 June 1995 from the FSM requesting a refund of his SBP premiums.

EVIDENCE OF RECORD:  The FSM's military records are not available.  The information contained herein was obtained from documents provided by the applicant.

The FSM and the applicant married on 23 July 1969.  On 1 December 1982, after completing 20 years of active duty, the FSM retired.  At that time he elected to participate in the SBP for spouse only coverage, reduced amount.  

In February 1986, the FSM and the applicant divorced.  In pertinent part, the divorce decree states “…in existence a survivor benefit plan issued on the Husband’s pay…which the Wife shall remain the beneficiary of so long as the Wife does not remarry.”

The FSM apparently forwarded a portion of the divorce decree to the Army shortly after the divorce (but apparently he continued to pay spouse coverage premiums until he requested a refund in 1995).

The FSM died on 11 May 1999.  At the time of his death he had no SBP beneficiary.

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. 

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

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.

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.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

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.  A spouse could make a deemed election within one-year of the date of the divorce, as her attorney should have informed her, but even so it would have to have been made with the FSM’s agreement.  The Board recognizes that the FSM probably would not have agreed to provide such coverage and by law that would have been within his rights. 

2.  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:

__mkp___  _gdp____  __tbr___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031274	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.