MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 2000                   
	DOCKET NUMBER:   AR1999031974

	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 court order entitled her to full survivor benefits.

COUNSEL CONTENDS:  That the attorney who represented the applicant at the time of her divorce failed to obtain a Qualified Domestic Relations Order and submit same within one year of her divorce.  She discovered this only after the death of the FSM.  Supporting evidence is as listed on the attachment to the DD Form 149.

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

The FSM was a reserve component officer.  He and the applicant married on       7 July 1951.

On 7 March 1988, the FSM and the applicant divorced.  The transcripts of the divorce hearing state in pertinent part “…with respect to the pension plans titled to the defendant, the plaintiff shall be entitled to all survivor benefits available under those pension plans…To give full force and effect to this provision, counsel for both parties shall cooperate in the preparation of domestic relations orders which shall subsequently be executed by the court as…”

The qualifying domestic relations orders apparently were never prepared.

On an unknown date, the FSM remarried.

On 2 January 1993, upon reaching age 60, the FSM elected to participate in the SBP, spouse only coverage.  

On 29 January 1999, the FSM died.

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 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  If a member failed to make an election within 90 days of receiving his or her 20-year letter or elected to decline enrollment, he or she could choose at age 60 whether to start SBP participation.
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 active 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.

The Defense Finance and Accounting Service has confirmed that the FSM’s surviving spouse is receiving the SBP annuity.

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.  When the FSM and the applicant divorced in 1988, counsel for the parties evidently failed to follow up the court’s instructions to prepare domestic relations orders which would incorporate the provisions to make the applicant the FSM’s SBP beneficiary.  The applicant also evidently failed to ensure her attorney followed-up on these instructions.  As one result, the applicant failed to make a deemed election for SBP coverage within one year of the date of the divorce as required by law.

2.  In addition, the lawful beneficiary of the FSM’s SBP is currently drawing the SBP annuity.  The Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

3.  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

__mkp___  __gdp___  __tbr___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031974	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.