MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 28 October 2003
                  DOCKET NUMBER: AR2003084185

         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
Mr. W. W. Osborn,Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. Troup		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 husband, the former service member (FSM), be corrected to show she, J____ C____ rather than the former spouse, A____ C____, is the eligible beneficiary of his Reserve Components Survivor Benefit Plan (RCSBP).

APPLICANT STATES: In effect, that the Army did not abide by the one year time limit when it allowed the court to award the RCSBP to the former spouse 11 years after the divorce. The FSM did everything he was supposed to do to insure that his wife received all benefits coming to her. He served in the Army for 35½ years but only lived with the former spouse for 6½ years. She submits several documents in support of her request,

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

He was born on 20 January 1931. He served on active duty in the Air Force from 1951 to 1955. He joined the Pennsylvania Army National Guard in 1959. He retired as a master sergeant and was transferred to the Retired Reserve on 20 January 1991.

In support of her appeal the applicant submits the following documents:

An undated handwritten note from the FSM to a judge concerning the divorce settlement.

A 6 January 1988 divorce decree ended the marriage of the FSM and the former spouse. The court retained jurisdiction of any claims raised. Except for the immediate following four month period the issue of alimony was left open.

A marriage certificate shows the applicant and the FSM were married on 22 January 1988.

The first page of a 1995 letter from an attorney concerns a final property settlement as it related to the FSM's civilian pension and National Guard retirement.

A 12 September 1997 court order (a Qualified Domestic Relations Order) designated the former spouse an alternate payee and granting her a 40 percent share of the FSM "(Pennsylvania National Guard) Military Pension" or any successor plan. It stipulated that she was to have equal rights regarding her portion as the FSM had to his portion.

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In a 30 October 1997 statement the former spouse made a written request for a deemed election of RCSBP coverage. An attached note from the applicant reads, "Please note this act was done ten (10) years after the divorce was final. Your book states it must be done in one (1) year not 10 years."

A copy of the July-September 1995 issue of Army Echoes with an article about the SBP. The passage, "At the same time, if a divorce is court-ordered, a former spouse can send in a request that a change of election be deemed – within one year from the date of divorce." has been circled.

19 November 1997 letter from the Defense Finance and Accounting Service-Cleveland (DFAS-CL) to the applicant explaining that they had received an application to commence payments of a portion of his retired pay to the former spouse. It noted that under the law, the Uniformed Services Former Spouses' Protection Act (Title 10, United States Code section 1408) they had the responsibility and duty to enforce the court order.

A 24 December 1997 Retiree Account Statement forms shows "Spouse Only" coverage under the SBP and lists (apparently) the applicant's date of birth.

A 2 December 1998 (DFAS-CL 7220-148) shows "Former Spouse" coverage under the SBP and lists (apparently) the former spouse's date of birth.

An undated court brief (filed 28 April 1999) arguing that the FSM had paid the full amount due the former spouse as the result of a 13 November 1995 settlement agreement.

An unidentified designation of beneficiary postcard-sized form was signed by the FSM on 26 September 2000 and designates the applicant as the 100 percent beneficiary. A hand printed note reads "I mailed this form on Sept 26 2000, [A____ C____] is not my beneficiary."

A 19 March 2002 court order terminated without prejudice the arrearage status of the alimony due the FSM because the arrearage had been paid.

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The FSM's death certificate shows he died on 10 November 2002 at the age of 71.

The applicant's 16 December 2002 claim for the deceased FSM's unpaid benefits (Standard Form 1174).

Army Regulation 138-180 Retired Pay – Non Regular Service, chapter 3 provides for the RCSBP. Coverage is not automatic. Those eligible must elect one of the three options offered on the Survivor Benefit Plan Election Certificate (DD Form 1883), shown at figure 3-1 of that regulation. DD Form 1883 may be locally reproduced on 8½- by 11- inch paper.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

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. 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.

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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 documentation submitted by the applicant is fragmentary.

2. The available evidence fails to show that the Defense Finance and Accounting Service erred when it gave effect to the 1997 court order in favor of. the former spouse, A____ C____.

3. 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 this requirement.

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

__RJW__ __LDS __ ___MJT__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084185
SUFFIX
RECON
DATE BOARDED	20031028
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.00
2.
3.
4.
5.
6.