MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR2001064630

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		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:  That she be determined to be the eligible annuitant for the Survivor Benefit Plan (SBP) of her deceased spouse, a former service member (FSM).

APPLICANT STATES:  That the FSM’s death certificate was in error when it indicated he was widowed at the time of his death.  She and the FSM married in 1980.  Divorce activity did not result in divorce, they were married at the time of his death, and the death certificate has been corrected.

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

The FSM was born on 21 January 1913.  He enlisted in the Army on 22 January 1936.  He was commissioned in May 1940.  He transferred to the Retired Reserve in February 1968.  

On 20 December 1972, the FSM completed a Survivor Benefit Plan – Election Certificate electing to enroll in the SBP, full base coverage.  His spouse at the time was noted as M___.  M___ died in 1978, at which time the FSM’s SBP coverage was suspended.

The FSM and the applicant married on 13 September 1980.  

The Defense Finance and Accounting Service (DFAS) provided a divorce decree showing the FSM and the applicant were divorced on 31 January 1992.  The decree indicates the applicant was provided a summons and a copy of the Petition for Dissolution of Marriage on 9 April 1989 and she filed an appearance through counsel on 20 April 1989.  The SBP is not mentioned in the decree.  The State of Illinois issued a Certificate of Dissolution, Invalidity of Marriage, or Legal Separation showing the FSM’s marriage to the applicant was ended as the result of dissolution on 31 January 1992.  On 3 February 1992, the FSM requested DFAS stop his SBP deductions as a result of divorce action.  

The FSM died on 16 February 1999.  

The FSM’s death certificate originally noted his marital status as widowed.  Apparently, the applicant instituted a search of vital records.  She provides an Automated Vital Records document dated 29 May 2001 which indicates that no record of the FSM divorcing in 1992 could be found.  This document does not address the county where the divorce was filed, the correct maiden name of the applicant, or the date of the action.  On 6 July 2001, the Division of Vital Records, Illinois Department of Public Health corrected the FSM’s death certificate to show his marital status as married.  The Affidavit and Certificate of Correction shows he was married to the applicant.  

In the processing of this case, an advisory opinion was obtained from the Transitions and Separations Branch, U. S. Army Reserve Personnel Command.  That office noted that the FSM had not resumed his SBP coverage at the time of his death.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She stated that she is entitled to the SBP benefits minus the amount of any due premiums.  She also requests a document from the Board so she can obtain a military identification card.

Public Law 92-425, 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

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 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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, and advisory opinion, it is concluded:

1.  The Board notes that a search of vital records failed to reveal a divorce action between the FSM and the applicant and, based upon that search, the FSM’s death certificate was amended to reflect his marital status as married to the applicant.  

2.  However, the FSM provided DFAS a divorce decree in 1992 and requested DFAS stop his SBP deductions based upon divorce.  The divorce decree appears valid on its face.  It does not mention the SBP.  The Automated Vital Records document appears to be flawed as it did not address three items of information that could have aided the search for a divorce action.  The matters presented by the applicant do not overcome the apparent validity of the decree.

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

__inw___  __mmd___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064630	
SUFFIX		
RECON		
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.