PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 November 2000                   
	DOCKET NUMBER:   AR2000038709

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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 elected Survivor Benefit Plan (SBP) former spouse coverage.

3.  The applicant states she knows it has been 16 years since the FSM died but friends just recently explained to her that she did not get the SBP because it was not changed to former spouse.  He never changed the form because they always talked about remarrying.

4.  The FSM’s military records show that he entered active duty on 26 February 1945.  He and the applicant married on 18 April 1953.  The FSM retired on 1 July 1965.  On 26 July 1973, the FSM enrolled in the SBP during the initial Open Season for spouse and children coverage, full base amount.  

5.  On 16 August 1977, the FSM and the applicant divorced.  The divorce decree awarded the applicant 32 and ½ percent of the FSM’s retired pay.

6.  In December 1983, the FSM’s SBP premium deduction was changed from spouse and children to spouse.

7.  On 28 February 1984, the FSM died.  The death certificate shows the FSM was divorced.  

8.  In June 1984, the applicant was refunded $2,428.48 in overdeducted annuity costs for the period November 1977 through January 1984.

9.  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 Season for those members who retired prior to enactment of the law. 

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, enacted 8 September 1982, established SBP for former military spouses for retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. 

11.  Public Law 98-94, enacted 24 September 1983, established SBP for former military spouses for retired members.  The insurable interest option was authorized for beneficiaries following divorce if previously covered under spouse option.

12.  Public Law 99-145, dated 8 November 1985, 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 (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 while there is no evidence of Government error there is evidence of an injustice in this case.

2.  The FSM and the applicant divorced prior to the establishment of SBP former spouse coverage for retired members.  However, the FSM continued to pay spouse premiums until his death.  The Board concludes it was the intent of the FSM to provide SBP coverage for the applicant.  The Board notes that the FSM had been retired 18 years when the law changed allowing former spouse coverage and he presumably was not aware of the change and what actions were required to change his coverage.

3.  The applicant was refunded all spouse premium costs deducted from the FSM’s retired pay for the period November 1977 through January 1984.  The Board notes that had the FSM changed his SBP coverage to former spouse coverage, a refund for the period November 1977 through September 1983 would still have been appropriate.  However, from 1 October 1983 through the date of his death he would have been paying for former spouse coverage at the insurable interest rate and it would be appropriate to collect those costs.

4.  In view of the foregoing, the applicant’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 changed his SBP coverage to former spouse coverage, full base amount, on 1 October 1983 with premium costs due at the insurable interest rate.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due. 

3.  That the applicant be paid an annuity based upon the FSM’s change of election retroactive to 24 February 1984, the date of his death.

BOARD VOTE:  

__slp___  __mw____  __tlp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000038709	
SUFFIX		
RECON		
DATE BOARDED	20001114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.