PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 2000                   
	DOCKET NUMBER:   AR1999028599

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 Survivor Benefit Plan (SBP) spouse coverage.

3.  The applicant states that the divorce decree stated she was to remain the FSM’s beneficiary.

4.  The FSM’s military records show that after having had prior enlisted and warrant officer service, he was commissioned and entered active duty in 1961.  He retired on 1 February 1984.  His SBP election certificate is not available.

5.  On 15 August 1985, the FSM and the applicant divorced.  The divorce decree states in pertinent part “Husband agrees to maintain the “Survivor Benefit Plan” which he has elected and which is currently in effect.  Husband further agrees to take no action which would exclude Wife from receiving benefits under the “Survivor Benefit Plan.”

6.  The FSM died on 24 April 1999.  The obituary did not list a current spouse.

7.  On 20 December 1999, the Defense Finance and Accounting Service (DFAS) confirmed that the FSM had continued to pay spouse premiums until his death.  It appears the back premiums have been paid to his survivors.

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 of retiring members. 

10.  Public Law 98-94, enacted 24 September 1983, authorized former spouse coverage for retired members under the insurable interest option.

11.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide 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.

CONCLUSIONS:

1.  The FSM elected SBP coverage upon retiring.  The divorce decree in August 1985 ordered him to take no action which would exclude the applicant from receiving benefits under the SBP and he continued to pay spouse premiums until his death in April 1999.  He never remarried. 

2.  Although the FSM never notified Retired Pay Operations to change his SBP coverage to former spouse and the applicant never requested a deemed election, the Board concludes that the FSM’s continued payment of spouse premiums showed his intent to comply with the divorce decree to continue SBP coverage for her.  

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:

     a.  showing that the FSM applied for former spouse SBP coverage on          15 August 1985, the date of the divorce, under the insurable interest option; and

     b.  showing that the FSM applied for former spouse coverage under the spouse coverage provisions effective 1 March 1986.

2.  That the applicant be paid an annuity based upon the FSM’s changes in coverage retroactive to 24 April 1999, the date of his death.

3.  That the applicant be advised that DFAS will be instructed to collect any SBP costs due to include the difference in premiums due to insurable interest coverage vice spouse coverage from 15 August 1985 to 1 March 1986. 

BOARD VOTE:  

__mkp___  __gdp___  _tbr____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028599	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.