PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 July 2001                   
	DOCKET NUMBER:   AR2001053722

	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. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		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 on behalf of her mother, in effect, that the records of her deceased father, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states that the divorce decree awarded her mother the SBP.  The FSM was in contempt of court when he withdrew from the SBP just 7 days after the decree was signed.

4.  The FSM's military records show that he had prior service in the U. S. Air Force.  He and the applicant’s mother married on 22 September 1956.  He enlisted in the Regular Army in 1960.  He retired on 1 April 1976.  At that time he enrolled in the SBP for spouse coverage, reduced base amount ($300.00).

5.  On 23 September 1988, the FSM and the applicant’s mother divorced.  The divorce decree states in pertinent part “The Court further finds that, as a just and right division of the estate of the parties having due regard for the rights of the parties, such Survivor Benefit Package election should be continued and maintained in full force and effect and that same should not be altered or withdrawn by ___ during his lifetime.  IT IS THEREFORE FURTHER ORDERED AND DECREED that ___ shall not, during his lifetime, revoke, modify, amend, withdraw, or in any other form alter the election to provide the Survivor Benefit Package… is permanently ENJOINED AND RESTRAINED from revoking, withdrawing, amending, or in any other way modifying or altering such benefit package election.”  

6.  On or about 1 October 1988, the FSM provided the U. S. Army Finance and Accounting Center his divorce decree.  The Finance and Accounting Center processed that portion of the decree dividing his retired pay and stopped his SBP coverage.

7.  On 21 December 2000, the FSM died.  He apparently did not remarry and no beneficiary is currently receiving the SBP.

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 (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

10.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

11.  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.

12.  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.  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 Board concludes that there is no Government error in this case.  It appears that the FSM may have failed to request, in writing as required by law, a change to his SBP coverage to former spouse coverage due to the strict wording of the court decree, i. e., that he would not, during his lifetime, revoke, modify, amend, withdraw, or in any other form alter the election to provide the SBP to the applicant’s mother.  When he then submitted the divorce decree to the U. S. Army Finance and Accounting Center to start the division of his retired pay, that Center automatically stopped his SBP.  

2.  The law provides that if a person fails or refuses to make such an election for former spouse coverage, the former spouse concerned may make a written request that such an election be deemed to have been made.  There is no evidence that the applicant’s mother did so.  The law permitting a former spouse to do so had only been in effect for two years and the applicant’s mother or her counsel may not have aware that she could have done so.

3.  The Board concludes that as a matter of equity the applicant’s mother should be granted the SBP annuity.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant’s mother was married to the FSM for the majority of his military career.  However, SBP premiums were not paid from 1988 until the FSM’s death in 2000.  It would be appropriate to require that all due SBP premiums be paid before starting the SBP annuity.
4.  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 requested, in writing, that his SBP coverage be changed to former spouse coverage, reduced base amount ($300.00) on       1 October 1988.  

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’s mother be paid an annuity based upon the FSM’s changed SBP election retroactive to the date of his death.

BOARD VOTE:  

__jns___  __mvt___  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001053722	
SUFFIX		
RECON		
DATE BOARDED	20010724	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.