MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 September 2001                   
	DOCKET NUMBER:   AR2001059763

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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) election to former spouse coverage.

APPLICANT STATES:  That she was considered the spouse of the FSM at the time of his death.  The divorce proceedings were not clear; therefore, she proceeded as his spouse.  She was in no way aware that final divorce papers existed.  The FSM was a very abusive man but they loved each other.  Even with a divorce there was always a chance for them to change and get back together again as husband and wife.  He always took pride in all his assignments and as his wife she stood right along with him.  He intended to help her be able to live in a reasonable manner with the financial benefits she would receive with the SBP. She planned and took care of the funeral arrangements for the FSM.  She took care of his belongings after his death.  

COUNSEL CONTENDS:  That she represented the applicant in her divorce from the FSM.  It was her understanding that the applicant was mistaken about her marital status at the time the FSM died.  The applicant is still held liable for all costs incurred by the FSM before his death and for his burial.  Under the circumstances that the court proceedings were ongoing, it is strongly acceptable that the applicant was operating as the FSM’s wife before and after his death and she should be entitled to receive the SBP.

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

He enlisted in the Regular Army on 5 November 1975.  

On 10 June 1992, the FSM and the applicant married.

On 1 December 1995, the FSM retired.  At that time, he enrolled in the SBP for spouse and child coverage (his Record of Emergency Data, DD Form 93, dated 4 May 1994 shows that he had children from a previous marriage).

On 27 September 2000, the FSM and the applicant divorced.  The divorce decree states in part “…I find that Defendant is in Contempt of the Final Settlement Agreement…in which the Defendant was to pay Plaintiff one half of the State and Federal 1999 Taxes Refund…An earnest effort was made to reconcile the parties, however, to no avail.  After inquiring of the parties whether there was anything that this Court or anyone could do to reconcile the parties, both parties agreed and this Court is satisfied that any other attempts in this regard would be futile…That the parties voluntarily appeared before this Court…NOW, THEREFORE, IT IS SO ORDERED THAT:  The Plaintiff is hereby granted a Divorce…”  No mention of the SBP is made.

On 27 November 2000, the FSM died from a self-inflicted gunshot wound to the head.

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 (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  

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.  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 this requirement.

2.  The evidence shows that the applicant was present at the divorce trial when the Court ordered “The Plaintiff is hereby granted a Divorce…”  The divorce proceedings indicated the FSM was not willing to refund to the applicant her share of the 1999 Federal and state tax refund, indicating he never intended to financially provide for the applicant.  Contrary to the applicant’s contention that there was a chance for them to get back together again as husband and wife, the divorce decree stated that both parties were queried as to whether there was anything that the Court or anyone could do to reconcile the parties.  The Court was satisfied that any other attempts in this regard would be futile.

3.  The Board concludes that there is no matter of equity to consider in this case. It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for only three and one half years of his  20-year career.

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

__lls___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059763	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.