MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 November 2001                   
	DOCKET NUMBER:   AR2001062240

	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. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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 she be determined to be the legal spouse and beneficiary of the Reserve Component Survivor Benefit Plan (RCSBP).  She further requests, that all of the FSM’s records be corrected to show that she was the legal spouse at the time of his death and that she is entitled to whatever benefits that have accrued since his death, including service benefits and life insurance.  

APPLICANT STATES:  In effect, that the FSM’s death certificate incorrectly shows A_B as his spouse.  The applicant states, in effect, that the woman named on the FSM’s death certificate is not his spouse because their divorce was never finalized.  She believes that her marriage to the FSM is still legal even though they were not living together at the time of his death.  The applicant states, that they kept in contact with each other over the years.  

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

He was born on 31 January 1935.  He enlisted in the U.S. Navy on 11 March 1953.  On 2 February 1957, he and the applicant were married.  On 7 March 1957, after serving 3 years, 11 months and 27 days of active military service, the FSM was discharged and transferred to the Reserve.

On 11 November 1972, the FSM married A_B, in Tijuana, Mexico.  The records at the Defense Finance and Accounting Service (DFAS), show that the applicant petitioned for a divorce on or about 26 October 1973 and their divorce was not final until on or about 28 December 1973.  

On 22 January 1977, after 9 years, 8 months and 27 days of inactive military service, the FSM enlisted in the Army National Guard.  On 18 May 1985, the FSM received notification of his eligibility for retired pay at age 60 (his 20-year letter).

On 23 June 1985, the FSM completed a DD Form 1883; electing to enroll in RCSBP, for spouse and children coverage, option C, full base amount.  On the DD Form 1883, Section III, item 10, shows A_B, as the spouse.

The FSM died on 7 August 1999 of a cardiac arrhythmia.  The death certificate shows, A_B, as the surviving spouse.  She is also receiving the SBP annuity.

Public Law 95-397, the RCSBP, 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.  Three option 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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted to soldiers and former Reserve component soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.      

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 contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or evidence of record.  Although there may be some confusion surrounding the FSM’s second marriage, this Board will make no determination about the surviving spouse’s marital status.  However, the evidence of record does show that the applicant petitioned for a divorce in October 1973 and the divorce apparently became final in December of the same year.  When the divorce became final, the applicant was no longer his legal spouse and therefore not qualified to be the lawful beneficiary of RCSBP.  Furthermore, at the time of their divorce, RCSBP had not yet been established.

3.  There is also no evidence to show that it was ever the FSM’s intent to provide former spouse coverage for the applicant.  In any event, former spouse coverage also had not yet been established when they divorced.

4.  The evidence of record, however, does show that the FSM remarried and after receiving his 20-year letter, elected RCSBP for spouse and children in June 1985.  After the FSM’s death, A_B was listed as the surviving spouse and was determined to be the lawful beneficiary of the FSM’s RCSBP.  A_B is currently drawing the RCSBP annuity.  

5.  Therefore, this Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To grant the applicant’s request at this date would constitute an unconstitutional taking without due process of law.

6.  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___  __jpi___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062240	
SUFFIX		
RECON		
DATE BOARDED	20011129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.