MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001065106

         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:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		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: 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) election to former spouse coverage.

APPLICANT STATES: That she and the FSM were married for 28 years until he left her for another woman. He agreed and it was in the divorce decree that she would continue as his SBP beneficiary. In 1993, he wrote the Army to make sure she was made the SBP beneficiary but was told it could be changed only if his current spouse agreed to waive her rights to the SBP. His current spouse refused to do so. She, the applicant, was never informed of any of these events. The FSM had told her in 1999, at their daughter’s wedding, that she was still the SBP beneficiary. She did not find out until after the FSM died that the SBP was going to the woman who broke up their marriage.

COUNSEL CONTENDS: Counsel contends that the applicant had no knowledge that the FSM was required to change his SBP beneficiary within one year of the divorce. She would not have known if the FSM had changed the beneficiary even if she had known of the requirement.

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

He entered active duty on 10 February 1941. He and the applicant married on 13 June 1963. He retired on 31 July 1971.

On 17 September 1982, the FSM enrolled in the SBP for spouse only coverage, reduced base amount.

On 23 July 1991, the FSM and the applicant divorced. The Voluntary Separation and Property Settlement Agreement stated in pertinent part that the FSM agreed to continue payments on the SBP for the benefit of the applicant.

The FSM remarried in 1991.

In December 1993, the FSM wrote to the SBP Board requesting his SBP coverage be changed to former spouse coverage. He was informed the SBP Board could consider his case if he signed a statement indicating he understood that federal law (not state courts) dictates SBP eligibility conditions for former spouses regarding remarriage and continued SBP coverage and if his current spouse signed a statement agreeing with the switched coverage and relinquishing claim on future SBP benefits. The FSM signed his statement; his spouse did not sign hers. Without his spouse’s consent, the SBP Board could not give the relief requested.

The FSM died on 14 July 2000.

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. Elections are made by category, not by name. Changes in SBP options are not authorized except in specific instances or authorized by law. It declared a 12-month Open Season for those members who retired prior to enactment of the law.

Public Law 97-35, enacted 12 August 1981, established the second 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 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.

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. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce. 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. When the FSM and the applicant were divorced in July 1991, the Voluntary Separation and Property Settlement Agreement stated in pertinent part that the FSM agreed to continue payments on the SBP for the benefit of the applicant.

2. However, federal law clearly requires that the FSM make a written application to the Army to have his SBP election changed from “spouse” to “former spouse.” If he failed or refused to do so, federal law clearly states that the former spouse concerned may make a written request that such an election be deemed to have been made. The law also provides, however, 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. In this case, the law’s one-year time limit to request a deemed election expired on 23 July 1992.

3. The FSM attempted to change his SBP coverage to former spouse coverage in 1993, outside the one-year time limit. Unfortunately for the applicant, the FSM had remarried in 1991. His spouse’s consent to his requested change was required before the SBP Board would consider granting his request. His spouse did not provide her consent.

4. Although there is no evidence of government administrative error, the Board believes that, at one time at least, it was the FSM’s intent to provide the SBP to the applicant. However, the lawful beneficiary of the FSM’s SBP is the FSM’s widow. 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. To do so would constitute an unconstitutional taking without due process of law.

5. 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:

__mmd___ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ __jtm___ __inw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065106
SUFFIX
RECON
DATE BOARDED	20020416D
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.