MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 January 1999                   
	DOCKET NUMBER:   AC98-07237
				   AR1999016000

	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. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		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:  Correction of the deceased former service member’s (FSM) military records to show that he elected participation in the Survivor Benefit Plan (SBP) for his former spouse.

APPLICANT STATES:  That her former husband, the deceased FSM, was ordered by the county court in Arkansas to maintain her as a named beneficiary on his SBP after the divorce.  She also states in a follow-up letter that it was always his intent to take care of her after the divorce and in the event of his death.

EVIDENCE OF RECORD:  The deceased FSM’s military records show:

He was married to the applicant on 6 March 1950.  He enlisted and entered active duty on 6 June 1950 with prior Navy service.  He remained on active duty until his retirement on 30 November 1970.

Information provided by the office of retirement services for the Army shows that the FSM elected spouse only coverage in the SBP program on 1 April 1973.  He and the applicant were divorced on 23 May 1983 and the applicant lost her eligibility for SBP coverage.  Although the state court ordered the FSM to maintain SBP coverage for his former spouse (applicant) it was unenforceable because there was no provision of Federal law that permitted divorce courts to order former spouse SBP coverage until Public Law 99-661 was enacted on 14 November 1986.  This law required the retiree to request the SBP change within one year after the divorce but the FSM and the applicant were divorced in 1983, three years before the law was passed.

In May 1984 the FSM was informed by the Army Finance Center that SBP coverage for his former spouse was terminated effective 23 May 1983 due to divorce and his new spouse was eligible for SBP coverage on the first anniversary of his remarriage.

In January and February 1989 the FSM wrote to the Army Finance Center to obtain the necessary forms to cancel his SBP coverage.  There is no record that he ever acted to cancel SBP coverage.  The FSM died on 15 December 1997 with spouse only SBP coverage in effect for the second spouse.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from HQDA, Army Retirement Services who recommend denial of the applicant’s request.  The opinion notes the legally unenforceable provision of former spouse SBP coverage in the divorce proceedings and the inaction by the FSM to provide for his former spouse (applicant) after the law allowed for such an 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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The deceased FSM’s SBP coverage for the applicant was properly terminated effective 23 May 1983 based on their divorce in accordance with the laws and regulations in effect at the time.

3.  The appropriate finance center properly made all changes requested by the deceased FSM based on changes in his marital status.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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

RVO_____  SLP_____  KAN_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07237/AR1999016000	
SUFFIX		
RECON		
DATE BOARDED	19990114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.