PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 November 2001                   
	DOCKET NUMBER:   AR2001061812

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 her deceased former spouse, 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 she was awarded the SBP in the divorce decree and the FSM notified the Army that his SBP coverage was to be changed.

4.  The FSM’s military records show that he was born on 11 March 1913.  He was commissioned a second lieutenant in the U. S. Army Reserve in June 1935. He was transferred to the Retired Reserve in 1959.  He began to draw retired pay in March 1973.

5.  The FSM enrolled in the SBP for spouse and child coverage, reduced base amount, apparently when he was first offered an opportunity to do so.  During the 1981 – 1982 Open Season, he raised his coverage.

6.  On 10 May 1990, the FSM and the applicant divorced.  A qualified domestic relations order (QDRO) dated 10 May 1990 stated in pertinent part “…It is further ordered…that (the FSM) …fully complete, sign, and return to Retired Pay Operations…to confirm the Armed Services Survivor Benefit election previously made … to continue to provide the Armed Services Survivor Benefit Plan benefits to (the applicant)…”

7.  By letter dated 7 April 1991, the FSM wrote to the U. S. Army Finance and Accounting Service informing them that he was designating the applicant as his former spouse to receive the SBP.

8.  The FSM died on 5 January 2001.  The death certificate lists his marital status as divorced.  The Defense Finance and Accounting Service indicated that no one is currently receiving the SBP annuity.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

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.  There is evidence of Government error in this case.  The FSM and the applicant divorced on 10 May 1990.  The FSM was ordered to provide the SBP to the applicant as his former spouse.  On 7 April 1991, within the one year period required by law, the FSM made a written request that his SBP be changed to provide for former spouse coverage.  For an unknown reason, his request was not processed.

2.  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 FSM concerned made a written request to change his SBP coverage to former spouse coverage on 7 April 1991, within one year of the 10 May 1990 QDRO, 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 SBP coverage retroactive to 5 January 2001, the date of his death.

BOARD VOTE:  

__jlp___  __mhm___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Jennifer L. Prater
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061812	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.