PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 November 1999                   
	DOCKET NUMBER:   AR1999022257

	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. Fred N. Eichorn		Chairperson	
	Mr. Edwin S. Castle		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 requests 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.

3.  The applicant states that she was to receive the SBP benefits per their divorce decree.  The Army Pay Center failed to comply with the FSM’s written request to change his coverage to former spouse.  Supporting evidence is as listed on the DD Form 149.

4.  The FSM’s military records show that after having had prior service in the Army National Guard, he enlisted in the Regular Army on 25 February 1955.  He retired on 8 November 1974 by reason of a physical disability.  At this time, he elected SBP coverage for spouse and children at a reduced amount ($300.00). 
(The youngest child was born in 1968.)

5.  On 15 May 1996, the FSM and the applicant divorced.  The separation agreement stated in pertinent part “…Furthermore, the Petitioner shall further be entitled to any survivor’s benefits.”

6.  A Veterans of Foreign Wars service officer has provided a statement wherein he states he assisted the FSM in changing his SBP coverage to former spouse coverage.  In July 1996, the FSM prepared a certified letter to the Retired Pay Center requesting the applicant remain his SBP beneficiary.  The service officer states he had notarized the letter for the FSM.

7.  The FSM died on 15 December 1997.  On 7 October 1999, the Defense Finance and Accounting Service (DFAS) confirmed that no one is currently receiving the FSM’s SBP annuity.  He had paid premiums up until his death.  Those overpaid premiums were paid back to one of the FSM’s daughters in the amount of $1,108.81.

8.  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.  

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. 

10.  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.

CONCLUSIONS:

1.  When the applicant and the FSM divorced in 1996, the separation agreement had stated the applicant would be entitled to any survivor’s benefits.

2.  While there is no evidence to show DFAS received the FSM’s request to change his SBP coverage to former spouse, there is evidence to show that he did request such a change shortly after the divorce.  No eligible beneficiary is drawing the annuity.

3.  At the time of the FSM’s death, his overpaid SBP premiums in the amount of $1,108.81 were refunded to his daughter.

4.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s 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 FSM concerned changed his SBP coverage to former spouse coverage on 1 July 1996, the approximate date the Veterans of Foreign Wars service officer states he notarized the FSM’s letter requesting the change.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 15 December 1997, the date of the FSM’s death.

3.  That any debt owed due to former spouse costs not paid or refunded be waived.

BOARD VOTE:  

__fne___  __esc___  __sk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022257	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.