PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 December 2000                   
	DOCKET NUMBER:   AR2000045016

	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. June Hajjar		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		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 former spouse Survivor Benefit Plan (SBP) coverage.

3.  The applicant states that, since the FSM was very ill, he was unaware that he needed to make a change to his SBP.

4.  The FSM’s military records show that that he enlisted in the Regular Army on 14 July 1972.  He and the applicant married on 29 April 1973.  He retired on       8 February 1990 by reason of a physical disability.  His physical disability was rated at 80 percent but the cause of his disability is unknown.  At that time he enrolled in the SBP for spouse and children coverage, reduced base amount.

5.  On 18 April 1996, the FSM and the applicant divorced.  The divorce decree stated in pertinent part “…the Survivor’s Benefit Plan for Defendant’s Disability Retirement pay shall be maintained in full force and effect and shall remain in the name of the Plaintiff.”

6.  The FSM died on 11 January 2000.  The Defense Finance and Accounting Service – Denver Center has verified that no one is currently receiving the FSM’s SBP annuity.

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. 

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

9.  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.

10.  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.  The applicant could have requested a deemed election within one year of the date of the divorce without waiting for the FSM to change his election.  However,
the Board concludes that the applicant should not be penalized for her oversight or for the FSM’s intentional or unintentional oversight in failing to change his SBP election to former spouse and children coverage.

2.  As there is no current beneficiary of the FSM’s SBP who would be deprived of due process should this correction be made, the Board concludes that it would be appropriate to direct that the order of the divorce decree be adhered to.  It would also be appropriate, however, for any premiums due to be paid.

3.  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 changed his SBP election to former spouse and children coverage, reduced base amount, on 18 April 1996, the date of the divorce.

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 SBP coverage retroactive to 11 January 2000, the date of his death.

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

BOARD VOTE:  

___jh___  __hof___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045016	
SUFFIX		
RECON		
DATE BOARDED	20001214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.