MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 January 1999                   
	DOCKET NUMBER:   AR1999015701

	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. James E. Vick		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. John H. Kern		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:  That the records of her deceased former spouse, a former service member (FSM), be changed to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for “former spouse.”

APPLICANT STATES:  The divorce decree required the FSM to provide RCSBP coverage for her.  He did not do so because he was incompetent; he committed suicide.

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

The FSM was born on .  The FSM enlisted in the Arkansas Army National Guard on 18 September 1965.

The applicant and the FSM married on 15 July 1966.

On 16 January 1986, upon receiving notification that he was eligible to receive retired pay at age 60, the FSM elected RCSBP coverage for “spouse,” Option C, immediate coverage.

On 13 September 1990, the FSM was transferred to the Retired Reserve.

On 11 August 1993, the applicant and the FSM were divorced.  The divorce decree makes no mention of RCSBP/SBP coverage.

On 14 June 1996, the FSM died (self-inflicted gunshot wound).

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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

Public Law 95-397, the RCSBP, dated 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

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.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services.  The opinion recommended that the applicant’s request be disapproved.  The opinion noted that the divorce decree did not order the FSM to convert his coverage to “former spouse.”  Absent the court’s order, the FSM would have had to voluntarily make a written request within one year of divorce to switch his “spouse” coverage to “former spouse” and there is no evidence that he did so.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion it is concluded:

1.	In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  At the time the FSM enrolled in the RCSBP, he was married to the applicant and his election was properly made.  His election for “spouse” coverage was irrevocable.  This allowed any new spouse he may have acquired after a divorce or if his marriage otherwise terminated to receive RCSBP/SBP coverage.  However, he and the applicant divorced in August 1993 and the court did not order the FSM to provide for “former spouse” coverage.  The applicant therefore was not entitled to a deemed election.

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

__JEV___  __MKP__  __JHK__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015701	
SUFFIX		
RECON		
DATE BOARDED	19990127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.