PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:         1 July 1999                             
	DOCKET NUMBER: AR1999016443

	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	
	Ms.  Judy L. Blanchard		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Stanley Kelley		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 (the former spouse) in this matter requests correction of her ex-husband’s, the former service member’s (FSM) military record to show that he elected Survivor Benefit Plan (SBP) participation for former spouse.

3.  On 1 June 1979, the FSM retired from active duty and elected “spouse only” SBP coverage at a reduced base amount.  On 16 June 1986, the marriage ended in divorce.  Incident to the divorce there was a Property Settlement Agreement which, among other things, provided that the applicant (Antonia) remain beneficiary as the former spouse under the Armed Services SBP.  The FSM voluntarily agreed to designate (Antonia), his former spouse, as his beneficiary under the Armed Services SBP and requests that the agreement to do so on his part be so approved by the Decree of Divorce.  The Property Settlement Agreement, further stated, that the FSM voluntarily agreed that he would not, during his lifetime, revoke, modify, amend, withdraw, or in any other form alter the election to name the applicant beneficiary of the SBP.  The FSM shall continue to pay any amounts necessary to insure that such plan remains in full force and effect.  However, he failed to make a written request to accomplish the switch in SBP coverage from “spouse” to “former spouse” coverage. 

4.  On 21 December 1997, the FSM died of a self-inflicted gunshot wound to the head.  His records show that he continued to pay “spouse only” SBP costs until his death.  There is some indication that the FSM remarried at some point before his death.  However, the particulars about the marriage are missing from his file.    
5.  On 29 January 1998, the applicant, (former spouse), made a written request to DFAS-Denver to receive SBP annuity.  As of this date no annuity is currently being paid, as DFAS-DE is awaiting a decision from this Board.  

6.  On 24 & 29 June 1999, a telephonic call to DFAS - Denver and DFAS - Cleveland shows the applicant as the listed spouse beneficiary for SBP.  The FSM’s finance record does not show that he remarried or that any one other than the applicant requested SBP annuity. 

7.  Public Law 92-425, 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 applicant elected SBP participation for his spouse in 1979.

8.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions verse insurable interest provisions. 

9.  In the processing of this case, a staff advisory opinion was obtained from the SBP Board in the Office of the Deputy Chief of Staff for Personnel.  The SBP Board recommended approval of the applicant’s request and that the election be changed from “spouse” to “former spouse” retroactive to date of retirement, in order to receive annuity.

CONCLUSIONS:

1.  The evidence of record shows that the applicant and the FSM divorced on 
16 June 1986.  The FSM’s record also indicates that at some point he remarried before his death.  However, there is no evidence to show when he remarried.   The Board notes that although the FSM did not change SBP coverage to “former” spouse there is also no evidence that he tried to discontinue SBP coverage or change his election to his second spouse.  The FSM was aware that SBP costs were being extracted from his pay and payment continued until his death on 
21 December 1997. 

2.  Therefore, the Board concludes that based on the language of the divorce agreement, the fact that he did not notify DFAS that he had remarried, the fact that the FSM took no action to change his beneficiary to his second spouse and the fact that SBP payment continued until his death shows that the FSM intended for his former spouse (the applicant) to be his beneficiary for SBP.  As of 29 June 1999, no one other than the applicant has submitted a request for the FSM’s SBP annuity.  

3.  Therefore, in the interest of justice, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM concerned changed his SBP participation from “spouse” to “former spouse” reduced based amount on 16 June 1986, the date of divorce.

2.  That the applicant (Antonia) be paid an annuity based upon the FSM’s change in coverage retroactive to 21 December 1997, the date of his death. 

BOARD VOTE:  

 jhl     fkm     sk    GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

		JoAnn H. Langston
		                           
		        CHAIRPERSON

INDEX

CASE ID	AR1999016443	
SUFFIX		
RECON		
DATE BOARDED	19990701	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.