PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 March 2001                   
	DOCKET NUMBER:   AR2000048223

	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. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		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 reinstatement of his Survivor Benefit Plan (SBP).

3.  The applicant states that when he divorced in 1997 he submitted copies of the Marital Settlement Agreement and the Judgement of Divorce Decree to the Defense Finance and Accounting Service (DFAS) with the intent of complying with the order that he maintain his now former spouse as his SBP beneficiary.  
In March 1998, he was notified that his SBP was suspended.  He was finally informed that since he did not include a cover letter (requesting former spouse coverage) when he originally submitted the documents his coverage was suspended.

4.  The applicant’s military records show that he was born on 25 January 1928.  After having had prior active duty, he entered the U. S. Army Reserve on 9 April 1948.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 21 February 1973.  

5.  Records at DFAS indicate that the applicant enrolled in the SBP upon turning age 60 for spouse coverage, full base amount.

6.  On 10 October 1997, the applicant divorced.  The Marital Settlement Agreement stated in pertinent part “…the petitioner shall make application for continuation coverage for the respondent under the Survivor Benefit Plan (SBP) by requesting the SBP election be changed from “spouse” to “former spouse” and providing a certified copy of the divorce decree to the Defense Finance and Accounting Service’s Cleveland Center within one (1) year from the date of the granting of divorce.” 

7.  The applicant remarried on 30 October 1997.

8.  The applicant complied with the court’s order and on 24 February 1998 DFAS acknowledged receiving a copy of the divorce decree and the Marital Settlement Agreement.  DFAS suspended his SBP coverage effective October 1997.

9.  On 17 January 2001, the applicant’s current spouse waived her entitlement to the applicant’s SBP.  

10.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted             30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  A member must make the election within 90 

days of receiving the notification of eligibility to receive retired pay at age 60 or 
else wait until he/she applies for retired pay and elect to participate in the standard SBP.  An Open Enrollment period was established from 1 October 1978 to 31 March 1980.

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.  Any such 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 Board concludes that it would be in the interest of justice to grant the relief requested.

2.  It was the applicant’s intent to comply with the divorce decree to change his SBP coverage to former spouse coverage.  He therefore submitted copies of the Marital Settlement Agreement and the Divorce Decree to DFAS in the belief that DFAS would understand it was his intention and desire to change his SBP coverage.  

3.  The law, however, requires a specific written request by the member to change an SBP election to former spouse coverage to be submitted within one-year of the date of divorce.  The mere submission of court documents will not suffice.  The applicant did not understand this until after the one-year submission period had ended.

4.  The applicant did remarry; however, his current spouse has given her written, informed concurrence with his request to change his SBP coverage to former spouse coverage.  

5.  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 submitted a written request to DFAS in February 

1998 electing to change his SBP coverage to former spouse coverage and that it was accepted for processing.

BOARD VOTE:  

__rwa___  __alr___  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Roger W. Able
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048223	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.