PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2001                   
	DOCKET NUMBER:   AR2001059483

	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. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		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) coverage be changed to former spouse coverage.

3.  The applicant states that on 1 October 1995, less than a month after his divorce, he sent the Army a letter requesting his SBP be changed but they lost his letter.  His former spouse is entitled to the SBP, the court awarded the SBP to her, and the Army owes it to her.

4.  The applicant’s military records show that he initially entered the Army in March 1955.  He and his first spouse married on 29 November 1958.  After a short break in service, he reenlisted in the Regular Army on 29 November 1960.  
He retired on 1 December 1976.  Records at the Army Retirement Services office indicate he did not enroll in the SBP at this time.  He enrolled on 7 January 1982 during the first Open Season for spouse coverage, full base amount.

5.  On 25 September 1995, the applicant and his first spouse divorced.  The divorce decree stated in pertinent part “…the Husband agrees to maintain and pay for the Survivor Benefit Plan…”  On 1 October 1995, the applicant sent a letter to the Defense Finance and Accounting Service (DFAS) requesting his SBP be changed to former spouse coverage.  

6.  On 9 September 1997, DFAS informed the applicant that his SBP was being adjusted from spouse to no beneficiary based upon his divorce.  He was refunded the premiums he had paid from the date of his divorce to September 1997.

7.  The applicant remarried on 25 January 1998.  He divorced his second spouse on 22 December 2000.

8.  The applicant remarried on 31 December 2000.  His current spouse has provided a statement concurring with his request to change his SBP coverage to former spouse coverage.  

9.  Public Law 92-425, 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. 

10.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982. 

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 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.

13.  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 a Government error occurred in this case.

2.  The applicant’s first divorce became final in September 1995.  The divorce decree awarded the SBP to his former spouse.  On 1 October 1995, he informed DFAS in writing, as required by law, to change his SBP coverage from spouse to former spouse coverage.  It appears DFAS lost or never received this letter.  

3.  The applicant has remarried twice since that divorce, the date of his latest marriage 31 December 2000.  His current spouse has not yet obtained a vested interest in the SBP; nevertheless, she has indicated that she concurs in his request to provide for former spouse SBP coverage.  It would be appropriate to grant the relief requested.  Premiums refunded by the Government will have to be paid back and any additional premiums due must be paid.

4.  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 proper offices received and processed in a timely manner the applicant’s 1 October 1995 letter requesting his SBP coverage be changed to former spouse coverage.

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

BOARD VOTE:  

__lls___  __jrs___  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059483	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.