PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 September 2001                   
	DOCKET NUMBER:   AR2001057250

	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	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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 the records of his deceased father, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage.

3.  The applicant states that the divorce decree awarded his mother the SBP benefits.  Documentation was forwarded to the Army at that time but apparently was not recorded.

4.  The FSM’s military records show that he was born on 27 September 1915.  He initially enlisted in the Army National Guard on 12 December 1935.  He and the applicant’s mother married on 22 November 1939.  He was appointed a warrant officer in the U. S. Army Reserve on 4 May 1951.  He was transferred to the Retired Reserve on 1 December 1972.

5.  In 1975, the FSM enrolled in the SBP for spouse and children coverage.

6.  On 23 October 1986, the FSM and the applicant’s mother divorced upon the grounds of abandonment by the FSM.  The divorce decree states in pertinent part “ORDERED AND ADJUDGED that the Plaintiff, (the applicant’s mother), may apply for and is entitled to whatever survivor benefit plan annuity is provided under the Survivor Benefit Plan 10 USC Section 1447 et seq.; and…”

7.  On 8 November 1986, the FSM remarried.  His second spouse died on          9 March 1999.

8.  Records at the Defense Finance and Accounting Service – Denver Center show that a divorce decree was never received by that office, they have no record of being informed that the FSM remarried, and the FSM continued to pay SBP premiums until March 1999, when he disenrolled.

9.  The FSM died on 16 December 2000.  The death certificate lists his marital status as “widowed.”

10.  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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law, including Reservists who were age 60 or older. 

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

12.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

13.  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.

14.  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.  No premiums will be refunded to those who opt to disenroll. 

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The FSM and the applicant’s mother divorced a month prior to the date that state courts could order former spouse coverage without the member’s agreement.

2.  The Board notes that the FSM continued to pay SBP premiums until March 1999, when it appears he terminated his enrollment under the provisions of Public Law 105-85.  Since the divorce decree stated that the FSM abandoned the applicant’s mother, the FSM presumably intended to provide spouse coverage for his new spouse rather than former spouse coverage for the applicant’s mother.  His new spouse pre-deceased him and he presumably terminated his SBP coverage in March 1999 because of her death.  

3.  However, 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 over 45 years and for the majority of his military career.  It would be appropriate for the Government to collect any SBP costs due from the period March 1999 until the date of the FSM’s death.

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 changed his SBP election to former spouse and children coverage on 1 December 1986 and that his election was received and processed by the appropriate office in a timely manner.

2.  That all of the Department of the Army records related to this case be corrected by showing that the FSM did not terminate his SBP coverage in March 1999.

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

4.  That the applicant’s mother be paid an annuity based upon the FSM’s changed SBP election retroactive to 16 December 2000, the date of his death.

BOARD VOTE:  

__jns___  __le____  __reb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057250	
SUFFIX		
RECON		
DATE BOARDED	20010925	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.