PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000046588

	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 disenrollment from the Survivor Benefit Plan (SBP) be reversed and that former spouse SBP coverage be initiated.

3.  The applicant states that when he and his spouse (now his former spouse) signed the request to terminate his SBP on 18 September 1998, they were having serious marital problems and their communication was very poor.  They filed for divorce in October 1998 and the final divorce decree became effective  15 May 1999.  When considering disenrollment, he used the Defense Finance and Accounting Service web page to do research on former spouse SBP.  It appeared to him that a former spouse could initiate former spouse SBP coverage on her own within one year of the divorce.  He is now informed that he was mistaken.

4.  The applicant’s military records show that, after having had prior enlisted service, he entered active duty as a commissioned officer on 4 March 1969.  He retired on 1 June 1992.  At this time he enrolled in the SBP for spouse and children coverage.

5.  On 18 September 1998, the applicant completed a Survivor Benefit Plan (SBP) Termination Request, DD Form 2656-2, terminating his SBP coverage.  His spouse concurred in this SBP termination action.

6.  On 15 May 1999, the applicant divorced.  The divorce decree states in pertinent part “Petitioner shall reinstate the SBP so that respondent will be protected in the event of his death…”

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 former spouse coverage for 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.  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.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required. 

CONCLUSIONS:

1.  While there appears to be no Government error in this case, the Board concludes that the applicant and his former spouse misunderstood the requirements for providing for former spouse SBP coverage.  It appears they may have believed that it was necessary to terminate spouse coverage in order for the former spouse to request former spouse coverage after the divorce.

2.  The Board concludes that it would be a matter of equity to show that the applicant did not terminate his SBP coverage on 18 September 1998.  It would then be appropriate to show that he changed his SBP coverage to former spouse coverage on 15 May 1999.

3.  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 applicant did not complete a DD Form 2656-2 on 18 September 1998 terminating his SBP coverage.

2.  That the applicant’s records be further corrected to show that he changed his SBP coverage to former spouse coverage on 15 May 1999.

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

BOARD VOTE:  

__aao___  __teo___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000046588	
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.