MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 June 1999                   
	DOCKET NUMBER:   AR1999014955

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		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 husband, a former service member (FSM), be corrected to show that she had made a deemed election for “former spouse” Survivor Benefit Plan (SBP) coverage and that she be entitled to receive the SBP annuity instead of his second wife.

APPLICANT STATES:  That the divorce decree stated that she was entitled to the benefits.  Her Representative in Congress further states that his second wife is aware of the applicant’s right to the annuity and is not contesting it; however, she has refused to cooperate further by advising the military of the error and continues to receive the survivor’s benefit.

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

He initially served in the Regular Air Force.  He and the applicant married on      21 August 1959.  He enlisted in the Regular Army on 17 August 1960.  He retired on 1 October 1976 in the grade of Sergeant First Class, E-7.  At this time, he elected to participate in the SBP, “spouse and children” coverage.

The FSM and the applicant divorced on 8 May 1991.  The separation agreement stated, in pertinent part, “Wife will be entitled to claim any and all widow’s and survivor’s benefits,…To the extent Husband is paying or must pay or allot a portion of his retirement pay toward the widow’s and survivor’s benefit, he will continue to do so.  The parties agree to request the Court incorporate such language in its decree as is necessary or proper to bind the military to abide by the intent of the parties, to the extent they can do so.”  The divorce decree further stated “the Court specifically reserves the right to further clarify the complainant’s entitlement to all widow’s and survivor’s benefits so as to satisfy any requirements of the military …”

On 26 June 1991, the U. S. Total Army Personnel Command (PERSCOM) responded to an inquiry from the applicant’s Representative in Congress “regarding the continuation of military benefits after her divorce.”  (The basic correspondence is not available.)  PERSCOM attached a former spouse information packet and stated that they were unable to determine her status, since she did not provide appropriate documentation to verify her eligibility as a former spouse.  He was also informed that the applicant should address all inquiries concerning the SBP to the Defense Finance and Accounting Service – Indianapolis Center (DFAS-IN).  No evidence is provided to show what the applicant’s or her Representative’s follow-up response was.

At some point, the FSM remarried.  He died on 26 November 1997 and his second spouse is currently receiving 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.  Elections are made by category, not by name.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

Public Law 97-252, dated 8 September 1982, established SBP for former military spouses.  

Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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 1450(f)(2) 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.  The FSM’s separation agreement had stated “Wife will be entitled to claim any and all widow’s and survivor’s benefits,…”

2.  It appears that the applicant’s Representative in Congress attempted to make a deemed SBP election in her behalf.  He should have been aware, as the applicant should have been aware when she received the former spouse information packet provided through her representative to her by PERSCOM, however, that Title 10, U. S. Code, section 1450 clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made.  The law also provides, however, 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 applicant provides no evidence to show that she attempted to make such a deemed election request to DFAS-IN.  

3.  Absent evidence that the applicant made a deemed election request within one year of the divorce as required by law, 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.

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

__RVO___  __KAN___  __TBR___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014955	
SUFFIX		
RECON		
DATE BOARDED	19990603	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.