MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 January 2003
	DOCKET NUMBER:   AR2002078043

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGarthy, Jr.		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 she has never remarried and she and the FSM spoke often.  He informed her that his wife at the time of his death was going to divorce him and he was extremely upset over this.  At that time he informed her that should anything happen to him she would receive his SBP.  She is the mother of his only child and she is the person listed on the paperwork as the intended beneficiary.  She believes that the FSM being served with divorce papers only 2 hours before his fatal accident caused his death.  This is only speculation on her part and she realizes it cannot be used in the Board's decision.

As supporting evidence, she provides an affidavit from the FSM's mother who stated that the FSM told her on several occasions that the applicant and their son were the beneficiaries of all his military retired pay and/or all benefits from the military in the event of his death.  He showed her a copy of a form he filled out before his death in which the applicant's name is listed to be the recipient of his military benefits in the event of his death.

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

He enlisted in the Regular Army on 25 September 1980.  An Application for Uniformed Services Identification Card DEERS Enrollment, DD Form 1172, shows he and the applicant married on 26 June 1988.

Apparently, the FSM and the applicant divorced on 30 March 1994.  The divorce decree is not available.

The FSM retired early on 1 October 1995.  At that time, he completed a Data for Payment of Retired Personnel, DD Form 2656.  The applicant is listed in section III as the designated beneficiary for his unpaid retired pay.  She and their son are listed in section VI (Dependency Information).  In section VII, the FSM checked item 20a, that he elected spouse only SBP coverage.  (Item 20e in section VII provides for former spouse coverage.)

The FSM married again on or about 9 October 1998.  Divorce papers were filed on 3 December 2001.  Notice was given to the FSM to appear for a hearing on 19 December 2001.  The FSM died on 12 December 2001 as a result of injuries received in a motorcycle accident.

By letter dated 22 February 2002, the Defense Finance and Accounting Service (DFAS) extended their sympathy to the applicant on the death of her "husband."  DFAS also provided her a Claim for Unpaid Compensation so she could apply for any unpaid retired pay due the FSM.

Records at DFAS show that the FSM's widow is drawing the SBP annuity.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of 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 member was participating in the SBP 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, it is concluded:

1.  The Board notes that it cannot be determined whether or not the applicant was the FSM's legal spouse at the time he retired.  It appears the FSM and the applicant divorced on 30 March 1994, prior to his retirement and election of spouse SBP coverage in 1995.

2.  Notwithstanding the actual date of the applicant's divorce from the FSM, SBP elections are made by category, not by name, and the FSM was still married to another woman at the time of his death.  The only by-name beneficiary entered on the DD Form 2656 is for unpaid retired pay, for which it appears the applicant has already submitted her claim.  The DD Form 2656 indicated that spouse coverage and former spouse coverage were two different categories of coverage. There is no evidence to show that the FSM was not cognizant of this difference.

3.  In addition, the FSM’s SBP election of spouse coverage was in effect on the day he died; therefore, at the one-year anniversary of their marriage his widow acquired proprietary rights over the annuity as the FSM’s legal beneficiary.  Despite the initiated, but not completed, divorce action, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.

4.  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

__KAN__  __GJW  _  __PHM __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002078043	
SUFFIX		
RECON		
DATE BOARDED	2003/01/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.