PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 June 2000                   
	DOCKET NUMBER:   AR2000036489

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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) coverage to former spouse coverage.

3.  The applicant states the FSM always paid the SBP premiums and thought she was covered.  They were living together for several years up to the time of his death.

4.  The FSM’s military records show that after having had prior service, he reenlisted in the Regular Army on 28 January 1955.  He retired on 1 October 1972.  It appears he enrolled in the SBP for spouse coverage during the first open enrollment season.  He and the applicant divorced in 1976.  He died on       5 November 1999.

5.  The applicant applied to the Defense Finance and Accounting Service (DFAS) for the SBP annuity.  On 28 December 1999, DFAS denied her application noting that she and the FSM divorced in 1976 but the FSM had failed to notify the proper authorities to change the SBP coverage to former spouse.  DFAS noted that he had continued to pay the SBP premiums.  It appears that the FSM did not remarry.  

6.  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.  It declared a          12-month open enrollment period for those members who retired prior to enactment of the law.

7.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses of retiring members.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.  The insurable interest option was authorized for beneficiaries following divorce if previously covered under spouse option.  A one-year open enrollment period from 24 September 1983 through     24 September 1984 was established.

9.  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.

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.

CONCLUSIONS:

1.  The Board concludes that it was the FSM’s intent to continue to provide SBP coverage for the applicant even after they divorced.  He continued to pay spouse SBP premiums from their divorce in 1976, even though such coverage was not authorized until 1983, until his death in 1999.

2.  In view of the foregoing, the FSM’s records should be corrected 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 elected to change his SBP election to former spouse coverage on 24 September 1983, the first day such an election was available to him.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to audit the FSM’s account to determine whether the FSM overpaid or underpaid his SBP account and to collect premiums due or refund overpaid premiums as necessary. 

3.  That the applicant be paid an annuity based upon the FSM’s election of former spouse SBP coverage retroactive to 5 November 1999, the date of his death.

BOARD VOTE:  

__vbc___  __jea___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Van B. Cunningham
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036489	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.