PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 December 1999                   
	DOCKET NUMBER:   AR1999026054

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		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, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage.

3.  The applicant states that even though she and the FSM were divorced in 1984, the FSM always intended her to receive his military pension.  They maintained frequent regular contact, neither he nor she ever re-married, and he continued to pay SBP premiums.  The applicant’s daughter provides a statement confirming that her father remained close to her mother after their divorce and that it was his intention to leave her his military pension should he die first.

4.  The FSM’s military records show that he was born on 8 May 1927.  He and the applicant married in December 1944.  After having had prior active service from 1945 to 1946, he enlisted in the Army National Guard in 1955.  He was appointed a warrant officer in the Army National Guard in 1958.

5.  On 12 August 1979, the FSM elected to participate in the Reserve Component SBP (RCSBP) for spouse and children coverage, option B, full coverage.

6.  On 5 November 1984, the FSM and the applicant divorced.

7.  On 16 July 1987, the FSM was transferred to the Retired Reserve.  On 4 July 1998, he died.

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 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses of retiring members under the provisions of insurable interest coverage. 

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members (Reservists, too) under the provisions of insurable interest coverage.
12.  Public Law 99-145, dated 8 November 1985 and effective 1 March 1986, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

13.  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.

14.  On 9 November 1999, the Defense Finance and Accounting Service (DFAS) confirmed that the FSM continued to pay SBP premiums up until his death.  No one is currently getting the SBP and back SBP premiums have not been paid out to his heirs.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.  

2.  At the time the FSM and the applicant divorced, state courts were not yet permitted to order SBP coverage.  However, the FSM could have voluntarily changed his spouse coverage to insurable interest coverage and then, on           1 March 1986, changed that coverage to former spouse coverage under the spouse coverage provisions (a lesser cost than insurable interest provisions).

3.  The Board concludes it was the FSM’s intent to always provide SBP coverage for the applicant as he continued to pay spouse premiums, although he never remarried, until his death.  He presumably did not understand that he had to change the category of coverage in order to retain her as an eligible beneficiary.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing that the FSM elected insurable interest coverage for the applicant on 5 November 1984, the date of the divorce; and 

     b.  showing that the FSM changed his insurable interest coverage to former spouse coverage, under spouse coverage provisions, on 1 March 1986.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 4 July 1998, the date of his death.
3.  That the applicant be advised that DFAS will be instructed to collect any SBP costs due from the period the FSM’s SBP was for insurable interest coverage. 

BOARD VOTE:  

__rvo___  __jph___  __aao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026054	
SUFFIX		
RECON		
DATE BOARDED	19991208	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.