PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 October 2001                   
	DOCKET NUMBER:   AR2001060422

	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. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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 she be determined to be eligible to receive the Survivor Benefit Plan (SBP) annuity from her deceased former spouse, a former service member (FSM).

3.  The applicant states that after 32 years of marriage she left the FSM because of a drinking problem.  They reconciled and planned on remarriage.  Her job involved much traveling.  The FSM wrote her a letter informing her he had taken care of her, that she was entitled to many benefits, and that he was paying for the SBP.  Neither of them remarried.

4.  The FSM’s military records show that he was born on 29 November 1937.  He enlisted in the Army National Guard in June 1954.  He and the applicant married on 28 February 1957.  He was appointed a warrant officer in the Army National Guard on 9 February 1971.  His notification of eligibility for retired pay (his 20-year letter) is dated 21 November 1977.

5.  The FSM enrolled in the Reserve Component SBP (RCSBP) on an unknown date for spouse only coverage.  The Survivor Benefit Plan Election Certificate, DD Form 1883, is not available.

6.  In 1989, the FSM and the applicant divorced.  The divorce decree does not mention the SBP.  

7.  On 14 January 2000, the FSM apparently attempted to change his SBP coverage to former spouse coverage during the 1999 – 2000 Open Season by completing a Data for Payment of Retired Personnel, DD Form 2656.  The proper form to have used was the Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election, DD Form 2656-3.  Apparently, the DD Form 2656 was not processed.  He continued to pay spouse SBP costs until his death.

8.  The FSM died on 9 December 2000.  The death certificate indicates he was not married at the time of his death.

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 95-397, the RCSBP, dated 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.  An Open Season was established from 1 October 1978 through 30 September 1979, later extended to 31 March 1980.

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.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

CONCLUSIONS:

1.  There is no Government error in this case.  The evidence of record shows that the FSM failed to change his SBP coverage from spouse to former spouse coverage until 14 January 2000, during the last Open Season.  Unfortunately, he used the incorrect enrollment form and did not live for the required 2-year period.

2.  However, the Board concludes that as a matter of equity the applicant 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 was married to the FSM for the majority of his military career.  The FSM continued to pay spouse premiums after the divorce and did attempt to change his coverage 11 months prior to his death.  The Board concludes that it would be appropriate to correct his records to show that he elected former spouse coverage on 1 January 1990, within one year of his divorce.

3.  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 from spouse to former spouse coverage on 1 January 1990 and that his request was received and processed by the appropriate office in a timely manner.

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 be paid an annuity based upon the FSM’s change in election retroactive to the date of his death.

BOARD VOTE:  

__fne___  __mhm___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060422	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.