PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 December 2000                   
	DOCKET NUMBER:   AR2000041716

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 the court ordered that she be granted the maximum allowable amount of survivors’ benefits and that the FSM keep in effect his SBP with her as the sole beneficiary.  The FSM assured her after the divorce that all survivor benefits were being continued and were in force.  However, after his death she found out that the FSM’s SBP had not been continued in force as ordered by the court.  Neither she nor any of her family had any knowledge of this fact while the FSM was alive.  All indications were that he was acting as per the court order.  

4.  The FSM’s military records show that he enlisted in the Army on                   12 September 1942.  He and the applicant married on 3 March 1948.  He retired on 1 September 1966.  In 1973, he enrolled in the SBP for spouse and children coverage.  

5.  On 6 August 1996, the FSM and the applicant divorced.  The marital settlement agreement stated in pertinent part “The Husband shall also designate the Wife to receive the sole and maximum amount allowable of survivors benefits of his retirement pay…agrees that the Husband shall keep in full force and effect his Military Survivor’s Insurance Policy with the Wife as sole beneficiary.  Husband shall furnish proof to the Wife of the same in January of each and every year hereafter.”

6.  On 19 January 2000, the FSM died.

7.  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.  An Open Season for retirees was established from 21 September 1972 – 20 September 1973.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.  SBP coverage for a former spouse will be in the same amount as SBP coverage for the spouse.

9.  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.

10.  Title 10, U. S. Code, section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.

11.  Title 10, U. S. Code, section 1450(f)(2) 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 an injustice has occurred in this case.

2.  The divorce decree ordered the FSM to maintain the applicant as his SBP beneficiary and to furnish proof to her of the same each and every year.  Although the applicant does not provide the “proofs” that the FSM furnished her to show he complied with the court order, the Board accepts her contention that the FSM assured her after the divorce that all survivor benefits were being continued and were in force.  The Board concludes that because of this assurance, the applicant did not request a deemed election.  

3.  The Board concludes that the applicant, who was married to the FSM for 18 of his 20 years in the Army, should not be penalized by the FSM’s misinformation and failure to comply with the court order.  The FSM’s records should be corrected to show he complied with the court order by changing his SBP coverage to former spouse and children coverage.  It would also be appropriate for back premiums to be paid.

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 changed his SBP coverage to former spouse and children coverage on 1 September 1996 at the same base amount originally elected.
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 SBP annuity effective16 January 2000, the date of death of the FSM, as a result of the above corrections.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fne___  __lem___  __hbo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041716	
SUFFIX		
RECON		
DATE BOARDED	20001212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.