PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999028170

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states, in effect, that the FSM neglected to inform the Army of his divorce.  The divorce decree states she is entitled to all benefits, she was married to the FSM for 28 years, and she declined to claim a portion of his retirement pay knowing she would be entitled to the SBP.  The FSM never remarried.  She was initially determined to be the beneficiary; then the Defense Finance and Accounting Service (DFAS) billed her for overpayment of entitlement.  

4.  The FSM’s military records show that he enlisted in the Regular Army in 1963. On 1 October 1966, the FSM and the applicant married.  He retired on 1 March 1988.  At that time he elected to participate in the SBP for spouse and children coverage (youngest child born in 1971), reduced base amount.

5.  On 27 June 1994, the FSM and the applicant divorced.  The divorce decree states in pertinent part “…the Plaintiff be allowed to receive and obtain any and all rights and benefits, including medical coverage, that she might otherwise be entitled to as the former wife of a retired military veteran.  Said benefits do not include any portion of the Defendant’s retirement.”

6.  The FSM died on 1 December 1998.  The certificate of death notes that he was divorced at the time of his death and the applicant was the informant.

7.  On 15 March 1999, DFAS established the applicant’s eligibility to the SBP annuity, apparently because they were unaware of the divorce.  On 11 May 1999, DFAS charged her with a debt in the amount of $1,575.30 as a result of overpayment of entitlement.

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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. 

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) 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.

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the 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 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 Board concludes that while there is no evidence of Government error, an injustice has occurred in this case.

2.  The Board notes that the divorce decree is not clear as to what benefits the applicant was awarded and it does not mention the SBP at all.  However, the Board believes it was the FSM’s intent to maintain the applicant as his SBP beneficiary.  He was divorced at the time of his death, he had continued to pay SBP premiums until his death, and the applicant is listed as the informant of his death.  

3.  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 showing that the FSM applied for “former spouse” coverage on     27 June 1994, the date of the divorce.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 1 December 1998, the date of his death.

3.  That any SBP debt charged against the applicant be cancelled and the prior SBP annuity paid to her be applied against that due her as a result of the aforementioned corrections.

BOARD VOTE:  

__rvo___  __sk____  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028170	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.