MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 April 2002                   
	DOCKET NUMBER:   AR2001066200

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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 stated that the FSM would pay the costs of maintaining the SBP benefits for her.  However, unbeknownst to her, he discontinued making SBP payments about a year later.  The Government never notified her that he had discontinued the payments.  When he died, she contacted the pay center but was told that no benefits would be forthcoming because he had discontinued the payments.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He initially enlisted in the Army in September 1953.  He and the applicant married on 30 November 1955.  He was appointed a warrant officer and entered active duty on 19 August 1966.  He retired on 1 October 1973.  At that time, he enrolled in the SBP for spouse only coverage.  The SBP election form is not available.

On 5 January 1975, the FSM and the applicant divorced.  The divorce decree stated in pertinent part, “…as a military retirement pension less $14.20 monthly deduction for a Survivors Benefit Plan, an involuntary contribution by Respondent with Petitioner as the irrevocable beneficiary upon Respondent’s death of $350.00 per month pension until Petitioner remarries.  After dissolution, if Petitioner remarried before Respondent died, Respondent then could substitute his children as beneficiaries for Petitioner.”

Payment of the FSM’s SBP premiums was suspended in 1976.

On 2 December 1998, the FSM remarried.  Payment of his SBP premiums resumed in December 1999.  He died on 11 December 2000.  The Defense Finance and Accounting Service stated that the FSM’s widow elected to receive Dependency and Indemnity Compensation (DIC).

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.  Elections are made by category, not by name, and are irrevocable except in specific instances or authorized by law.  Remarriage of surviving spouse before age 60 suspended payment.

Public Law 94-496, 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.  
Public Law 95-397, 30 September 1978, restored SBP for widows who remarry after age 60 and lose DIC.  

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, 14 November 1986, changed the remarriage age of surviving spouse before lifting suspension of payment to 59.  It also 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.

Public Law 101-508, 15 November 1990 but effective 1 November 1990, limited the payment of DIC to widows who do not remarry.

Title 38, U. S. Code, section 1311(a) provides that DIC shall be paid to a surviving spouse at the monthly rate of $850.00.  DIC payments may be authorized for surviving spouses who have not remarried, unmarried children under 18, helpless children, those between 18 and 23 if attending a VA-approved school, and low-income parents of certain service members or veterans.

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.  There is no evidence of Government error in this case.

2.  The FSM and the applicant divorced in 1976, before former spouse SBP coverage was authorized in 1982 and before courts could order former spouse coverage in 1986.  Effective 1 October 1976, the law provided that spouse costs would be suspended if marriage ends in death or divorce.  The FSM’s SBP costs were suspended from 1976 until December 1999.

3.  The Board concludes that normally, as a matter of equity, the applicant should be granted the SBP annuity as 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 and the applicant was married to the FSM for the majority of his military career.  However, the Board will not take corrective action because that action would cause another injustice.

4.  The FSM’s widow automatically acquired spouse coverage on the first anniversary of his remarriage in December 1998.  To grant the applicant’s request at this date would constitute an unconstitutional taking from his widow.  Although his widow is currently drawing DIC rather than SBP, if she should remarry she would lose her eligibility for DIC but would then be eligible to receive the SBP.

5.  Absent a statement from the FSM’s widow asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits if or when she elects to receive them.  To do so would constitute an unconstitutional taking without due process of law.

6.  Should the FSM’s widow agree to renounce the SBP, premiums for former spouse coverage would be due from approximately 1982 until 1999 when the FSM resumed paying SBP premiums.

7.  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

__fne___  __bje___  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2001066200	
SUFFIX		
RECON		
DATE BOARDED	20020418	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.