MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 February 2002                   
	DOCKET NUMBER:   AR2001065247

	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. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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) coverage to former spouse coverage.

APPLICANT STATES:  That the divorce decree awarded her the SBP.  His present wife has been unwilling to cooperate in this matter in any way.

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

He entered active duty as an enlisted member in 1946.  He and the applicant married in 1956.  He entered active duty as a warrant officer on 27 April 1967.  He retired on 30 April 1971.  

Records at the Defense Finance and Accounting Service (DFAS) show the FSM enrolled in the SBP on 22 October 1981 for spouse and child coverage, full base amount. 

The FSM and the applicant divorced on 17 November 1997.  The divorce decree stated that the FSM would pay and maintain the SBP which guaranteed an income to the applicant upon his death.

Records at DFAS indicate the FSM remarried in February 1999.  He died on     28 July 2000.  No one is being paid the SBP annuity at this time.  

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.  It required a   2-year waiting period for new spouse eligibility following post-retirement remarriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement remarriage.

Public Law 97-35, enacted 12 August 1981, established an Open Season from    1 October 1981 – 30 September 1982.  

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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 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.

Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

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.  The Board is cognizant that 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 the majority of his military career. 

2.  The FSM did not take action to comply with the court order to maintain the SBP for the applicant and the applicant did not take the action provided by law to provide for this possibility.  Therefore, the FSM’s widow automatically acquired spouse coverage on the first anniversary of his remarriage.  Absent consent of the FSM’s widow for the applicant to provide for former spouse coverage in lieu of spouse coverage, to grant the applicant’s request at this date would constitute an unconstitutional taking from his widow.

3.  The Board does not possess the authority to divest the current SBP beneficiary of her property interest in the annuity against her wishes.  The applicant may seek enforcement of the divorce decree in civil court with jurisdiction over the matter.  The estate of the FSM or the attorney who represented the applicant in the divorce proceedings may be amenable to suit, depending on the circumstances of the case.  The applicant should consult with competent counsel in this regard.

4.  Regrettably, 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

__jns___  __bje___  __jed___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065247	
SUFFIX		
RECON		
DATE BOARDED	20020214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.