MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001063604

         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)

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APPLICANT REQUESTS: That the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse.

APPLICANT STATES: That they asked the National Guard if the RCSBP should be put in their divorce decree and the National Guard told them they did not have to mention it if neither of them married again. He knew he was dying of cancer and they just could not stay together but they were the best of friends. She did not know the divorce would cause such a headache.

EVIDENCE OF RECORD: The FSM's military records are not available. Information contained herein was obtained from alternate sources.

He was born on 1 October 1945. A partially illegible copy of the FSM’s Army National Guard Retirement Points Summary is available. It appears he had active duty from June 1964 – June 1967. He and the applicant married on 5 June 1969. It appears he enlisted in the Army National Guard in September 1977. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 19 October 1995. On 29 December 1995, he enrolled in the RCSBP for spouse coverage, full base amount, option C. It appears he ended his service in November 1996.

The FSM and the applicant divorced on 9 February 1999. Both the FSM (the plaintiff) and the applicant (the defendant) had attorneys. The applicant was awarded an interest in the FSM’s Ford Motor Company retirement plan and the FSM was ordered to designate the applicant as the surviving spouse for purposes of the Ford Motor Company’s preretirement survivor annuity benefit and postretirement survivor annuity benefit. No mention is made of the RCSBP.

The FSM died on 27 May 2000. The death certificate indicates he had not remarried.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

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, dated 14 November 1986, 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.

In the processing of this case, an advisory opinion was obtained from the Transition and Separation Branch, U. S. Army Reserve Personnel Command. That office recommended disapproval of the applicant’s request stating in part that they could not comment as to why someone from the National Guard Bureau, State of Michigan did not explain in depth to the FSM what would happen to his RCSBP annuity should he divorce.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. She responded that she feels they were given bad information by the National Guard Armory personnel and it was not their fault the RCSBP was not mentioned in the divorce decree. They were married for 29 years. They divorced because he had cancer and he did not want her to go through all the sickness he was going through. She was still there for him. She also feels that she should get a military identification card.

Army Regulation 600-8-14 prescribes policies and procedures for using and preparing identification documents and DEERS (Defense Enrollment Eligibility Reporting System). In pertinent part, it states that DEERS is a congressionally mandated program established to improve the control and distribution of available uniformed services benefits and privileges. Enrollment in DEERS is mandatory for persons entitled to receive uniformed services benefits and privileges and Veterans’ Affairs benefits. The Guard and Reserve Family Member Identification Card, DD Form 1173-1, is issued to family members of “gray area” Reserve retirees (those eligible for retired pay at age 60 but not yet age 60) and to certain categories of unremarried surviving spouses of “gray area” Reserve retirees when the sponsor dies before reaching age 60.

The applicant appears to fall into the category Unremarried Former Spouse (URFS) 20/20/15 (divorced after 29 September 1988). If the marriage and service overlapped by at least 15 years but less than 20 years, and the divorce was finalized on or after 29 September 1988, medical care only is authorized and only for a 1-year period from the date of divorce. At the end of the 1-year period, the former spouse will have the option of enrolling in a Department of Defense sponsored private group health plan.

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. The applicant provides no evidence to show that it was the FSM’s intention to provide the RCSBP for her after the divorce. The Board notes that both she and the FSM had attorneys during their divorce proceedings and it was the responsibility of their attorneys, who should have known the law, to include all matters of concern and agreement in the divorce decree.

2. It appears the applicant would have been eligible for medical care only for a 1-year period from the date of divorce. At the end of the 1-year period, she would have had, and may still have, the option of enrolling in a Department of Defense sponsored private group health plan. She should contact the Continuing Health Care Program, PO Box 1608, Rockville, MD 20849-1608 or the identification card section at her nearest military installation for further information.

3. 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

__rvo___ __cla___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063604
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.