PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            22 March 2000                  
	DOCKET NUMBER:   AR1999026388

	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.  

	MS. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		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 his Survivor Benefit Plan (SPB) coverage be changed to former spouse coverage.  He states that he was not aware he needed to file an SBP election statement requiring former spouse coverage within one year of his divorce.  He notes he just recently discovered the need to do so.

3.  Records show the applicant retired from active Federal service on 31 October 1978 and at that time elected SBP spouse only coverage.

4.  Effective 18 February 1994, the applicant and his spouse divorced.  The divorce decree states in pertinent part that “there is a deduction of One Hundred Thirteen Dollars ($113.00) held out to cover continued pension to the spouse should the Husband pre-decease her” and that the applicant’s spouse “is to receive benefits in the event that [the applicant] should die before the payment specified has been completed.”

5.  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.

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

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.  Title 10, US Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails to or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

CONCLUSIONS:

1.  The evidence of record shows that the applicant elected “spouse only” SBP coverage upon his retirement in 1978 and that following his divorce it was his intention that his former spouse continued to be entitled to the annuity under the SPB in the event of his death.
2.  The Board concludes that an injustice has occurred in this case and that his records should be corrected accordingly.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned applied for “former spouse” coverage on 18 February 1994, the date of divorce.

BOARD VOTE:  

___jma__  ___tsk__  ___aao__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.