PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 December 2000                   
	DOCKET NUMBER:   AR2000047774

	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. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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 his records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states, in effect, that the divorce decree ordered that he maintain SBP for his former spouse and he never intended that she be removed from it.  

4.  The applicant’s military records show that he was commissioned on 19 July 1962.  He and his former spouse married on 1 September 1984.  He retired on    1 June 1987.  At this time he enrolled in the SBP for spouse and children coverage, reduced base amount.

5.  On 29 April 1996, the applicant divorced.  In pertinent part, the divorce decree stated that “The husband shall maintain the Survivor Benefit Plan associated with his military retirement benefit and continue showing the Wife as the sole beneficiary of said plan.”

6.  The applicant apparently sent a copy of the divorce decree to the Defense Finance and Accounting Service (DFAS) in 1996 with his request for a tax withholding change.  He did not address the SBP at that time; however, based upon receipt of the decree DFAS suspended his SBP spouse coverage.

7.  On 4 October 2000, the applicant informed an analyst with the Board that he is not married.

8.  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.  

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.  The election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce. 

CONCLUSIONS:

1.  The applicant did send his divorce decree to DFAS within one year of his divorce decree as required by law.  However, he did not explicitly state and DFAS did not recognize his intention to notify DFAS of the court’s order requiring him to maintain the former spouse as his SBP beneficiary and so DFAS terminated his SBP coverage.

2.  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 changed his SBP coverage to former spouse and children coverage effective 30 April 1996, the day after their divorce, with no change to the 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.

BOARD VOTE:  

__kak___  __ewl___  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Karol A. Kennedy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000047774	
SUFFIX		
RECON		
DATE BOARDED	20001221	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.