PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 August 2001                   
	DOCKET NUMBER:   AR2001057309

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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 Survivor Benefit Plan (SBP) election be changed to former spouse coverage.

3.  The applicant states that it was always his intention that his former spouse continue to be his SBP beneficiary after their divorce in January 1999 and therefore had that stipulation put into the divorce decree.  He provides his current spouse’s concurrence with his request for change in his election.

4.  The applicant’s military records show that he entered active duty on              15 January 1971.  He retired on 1 December 1991.  At that time he enrolled in the SBP for spouse and children coverage.

5.  On an unknown date but apparently in January 1999, the applicant divorced.  The divorce decree is not available.  He remarried on 2 October 1999.

6.  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.  Elections are made by category, not by name, and are irrevocable except under certain circumstances.

7.  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).

8.  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.

9.  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.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The applicant originally elected SBP coverage in the category of spouse and child.  The statute required he make a written request to change his coverage to former spouse (and child) coverage within one year of the date of divorce.  In the absence of his doing so, his former spouse could have made a written request, within one year of the date of divorce, for a deemed election.  Neither took the action provided for by law to make this change.

2.  However, the applicant states that it was always his intention to provide the SBP for his former spouse and that it was entered in the divorce decree.  His current spouse has agreed to his requested change.  SBP costs may be owed if his spouse coverage was suspended during the period between the date of his divorce and the date of his remarriage and it would be appropriate for those costs to be paid to the Government.

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 requested a change to his SBP from spouse and child coverage to former spouse and child coverage on 1 June 1999 and that his request was received and processed by the appropriate office.

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

BOARD VOTE:  

__rvo___  __cjp___  __lds___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057309	
SUFFIX		
RECON		
DATE BOARDED	20010830	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.