PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 November 1998                  
	DOCKET NUMBER:   AC98-06749

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene E. Wheelwright		Member	
	Ms. Margaret K. Patterson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the Survivor Benefit Plan (SBP) coverage elected by her former spouse, a former service member (FSM), be changed from “spouse” to “former spouse.”

3.  The applicant states that upon their divorce, it was the FSM’s intent to continue SBP payments so she could receive an SBP annuity upon his death.  She submits statements from friends and relatives, including one from the FSM’s brother, that the FSM’s intent had always been for the applicant to receive his SBP annuity.  She also submits a copy of the FSM’s and the applicant’s January 1996 joint bank account statement to show they maintained a close relationship even after the divorce.

4.  The FSM’s military records show that he was inducted into the Army on       10 February 1965.  He and the applicant were married on 31 January 1976.  The FSM retired on 31 October 1989, in pay grade E-9, after completing over           24 years of creditable active service.  He had elected to participate in the SBP for “spouse only” coverage at the full base amount.

5.  The FSM and the applicant were divorced on 5 July 1995.  The divorce decree does not order SBP coverage for the applicant.

6.  SBP premium deductions continued to be taken out of the FSM’s retirement pay up until his death on 6 February 1996.

7.  Public Law 91-245, the SBP, enacted 21 September 1972, 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.

8.  Public Law 99-145, enacted 8 November 1985, created “former spouse” and “former spouse and child” categories.

9.  In the processing of this case, an advisory opinion was obtained from the Army Retirement Services.  That opinion recommended that the applicant’s request be disapproved as no government administrative error is evident.  SBP was not court-ordered; the FSM and the applicant had one year from the date of divorce to facilitate the change of election to cover the former spouse.  Neither did so.  Considered were the fact that the FSM continued to pay spouse premiums after his divorce and the letters provided by individuals regarding the FSM’s intended former spouse coverage.  However, the opinion hinged on the fact that if it truly was his intent to cover his former spouse, he would have taken appropriate action.

CONCLUSIONS:

1.  The FSM elected “spouse only” SBP coverage upon his retirement but failed to take action after his divorce to change that coverage to “former spouse” coverage.  The applicant also failed to take such action.  They had one year from the date of divorce to do so.

2.  While the FSM may not have been aware that he had to make written notification to change his SBP coverage to “former spouse,” the Board believes that had it truly been his intention not to provide an SBP annuity for his former spouse he surely would have taken action to stop the SBP premium deductions.

3.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the FSM changed his SBP coverage from “spouse only” to “former spouse” on 5 July 1995, the date of his divorce.

BOARD VOTE:  

CMF____  IEW_____  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  MKP____  DENY APPLICATION

		______________________
		        CHAIRPERSON