MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001064692

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		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 spouse, a former service member (FSM), be corrected to show he designated her as his beneficiary for unpaid retired pay.

APPLICANT STATES:  That she and the FSM married on 11 February 2001.  On 15 February 2001, the FSM sent a letter to the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) requesting resumption of his Survivor Benefit Plan (SBP), spouse coverage and that she be listed as his next of kin.  He died on 11 June 2001.  She understands that she is not entitled to the SBP annuity but she should receive his back SBP premiums and his unpaid retired pay.

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

That, after having had prior service, he entered active duty as a warrant officer on 25 July 1958.  He retired on 31 July 1978.  At that time, he enrolled in the SBP for spouse and children coverage.  He designated his spouse, F___, and his son, G___, as the beneficiaries for his unpaid retired pay, both at a 100 percent rate (possibly intending his son to be a contingent beneficiary).

The FSM’s spouse died on 12 September 1999 and his SBP coverage was apparently suspended at that time.

The FSM married the applicant on 11 February 2001.  On 15 February 2001, he sent a letter to DFAS-CL requesting his spouse SBP coverage be resumed and that the applicant be listed as his next of kin.

The FSM died on 11 June 2001.  

Records at DFAS-CL indicate that the FSM’s son, G___, is the designated beneficiary for unpaid retired pay; however, the arrears in pay have not yet been paid out.  

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.  Public Law 94-496, effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.  It also reduced the waiting period for a new spouse’s eligibility from 2 years to 1 year following a post-retirement marriage.  Spousal costs are refunded if the eligibility period is not met.

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.  When the FSM retired, he designated his spouse and son as dual beneficiaries (most likely intending his son as a contingent beneficiary).  When he remarried 2 years after his first wife’s death, he wrote a letter to DFAS-CL requesting his spouse SBP coverage be resumed and that his wife, the applicant, be listed as his “next of kin.”  

2.  The Board believes that by “next of kin” the FSM intended the applicant to be designated his beneficiary for unpaid retired pay.  DFAS-CL has indicated that the FSM’s unpaid retired pay or pay in arrears has not yet been paid to anyone.  However, an individual’s next of kin is not the automatic recipient of unpaid retired pay or pay in arrears.  Because the FSM failed to specifically request that the applicant be made his beneficiary for his unpaid retired pay, his son remained the legal beneficiary.  Absent a statement from the FSM’s son asserting that he agrees to renounce payment of the FSM’s unpaid retired pay in perpetuity in favor of the applicant, or in the absence of a death certificate confirming the son’s death, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.

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

__rvo___  __cla___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064692	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.