PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000044501

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 his Survivor Benefit Plan (SBP) coverage be changed to former spouse coverage.

3.  The applicant states that he intended to comply with the order of the divorce decree but was not aware that he had to change the category of his SBP coverage.

4.  The applicant’s military records show that after having had prior enlisted service, he was appointed a warrant officer on 26 September 1966.  He retired on 1 February 1983.  At that time he elected to participate in the SBP for spouse only coverage.

5.  On 12 October 1990, the applicant and his spouse divorced.  The divorce decree stated in pertinent part “It is ordered that ___ shall be and remain the sole beneficiary of survivor benefits under ___’s Military Survivor Benefit Plan.”

6.  On 23 November 1990, the applicant remarried.  

7.  On 20 October 2000, the applicant’s current spouse concurred in the applicant’s request to change his SBP election to former spouse coverage.  She understood that his decision would be irrevocable and that by concurring in the change she would be waiving her property rights to the SBP.

8.  Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP 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. 

10.  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.

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.  Although neither the applicant nor his former spouse requested that his SBP coverage be changed to former spouse coverage within one year of the divorce, the applicant contends that it was his intention to comply with the order of the divorce decree to provide such coverage.  His current spouse has concurred in his request to now change his coverage and stated that she is fully aware of the implications of her concurrence.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant applied for former spouse SBP coverage on          12 October 1990, the date of the divorce.

BOARD VOTE:  

__aao___  __teo___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044501	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.