PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC9808574

	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	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 his Survivor Benefit Plan (SBP) be reinstated with a “former spouse” election.  He states he submitted his only copy of his divorce decree to Finance within 2 to 3 months of his divorce in 1988 requesting his SBP be continued.  He never received a response, but SBP premiums continued to be taken out.  He would periodically send “check” letters.  When he sent one of these “check” letters in 1995, the Defense Finance and Account Service (DFAS) arbitrarily stopped his deductions.

3.  The applicant’s military records show that after having prior enlisted service, he retired from the Regular Army on 1 March 1971, in pay grade W2, after over 20 years active federal service.

4.  During the SBP’s initial Open Enrollment period, the applicant’s elected SBP participation for “spouse only.”

5.  The applicant and his spouse divorced on 26 February 1988.  There is no evidence as to whether or not the divorce decree stated he should keep his SBP in effect with his former spouse as the beneficiary.

6.  Public Law 92-245, 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.  The law provided an Open Enrollment period from 21 September 1972 to 20 September 1973 for those who had retired prior to 21 September 1973 and had not had an opportunity to elect SBP.

7.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

8.  In the processing of this case, a staff advisory opinion was requested from the Headquarters Army Retirement Services Office.  The Retirement Services Office recommended that the applicant’s request that his SBP be changed to “former spouse” be approved, retroactive to the date of divorce, 26 February 1988.  While the applicant does not indicate if he voluntarily requested his SBP election be converted to “former spouse” or was court ordered to do so, his continued premium payments support his stated intent to provide for his former spouse.  The opinion did note that all SBP costs owed from the date DFAS stopped the deductions to the present must be collected.

9.  On 10 September 1998, the applicant wrote to state he agrees to pay all premiums required to reinstate his former spouse as his SBP beneficiary.  In addition, he supplied a copy of her birth certificate and a copy of her new marriage certificate.

CONCLUSIONS:  

1.  Although there is no evidence in the record that the applicant notified DFAS of his intent to continue SBP coverage for his former spouse, he states he did so and his continued payment of premiums indicate his intent to do so.  He is willing to pay back any premiums required to reinstate her as his SBP beneficiary.

2.  In view of the foregoing, it would be in the interest of justice to correct the records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant applied for “former spouse” coverage on 26 February 1988, the date of his divorce.

2.  That DFAS conduct an audit of the applicant’s account to determine what SBP costs he owes from the date SBP deductions were stopped in 1995 until his former spouse’s remarriage on 25 May 1996.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                        
                                                               CHAIRPERSON