PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 January 2002                   
	DOCKET NUMBER:   AR2001062391

	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. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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, in effect, that although the divorce decree granted his former spouse the SBP he was under the impression he could not change his SBP election.  He learned he could do so after the one-year window of opportunity to do so had passed.

4.  The applicant’s military records show that he enlisted in the Regular Army on 28 January 1970.  He retired on 1 February 1990.  At that time he enrolled in the SBP for spouse only coverage, reduced base amount.

5.  The applicant and his spouse divorced in March 2000.  The Separation and Property Settlement Agreement dated 9 March 2000 stated in pertinent part that he would continue to provide the SBP for his former spouse.  The divorce was effective 28 March 2000.

6.  On 10 April 2001, the applicant’s former spouse attempted to request a deemed election of the SBP.

7.  On 26 December 2001, the applicant informed an analyst with the Board that he had not remarried.

8.  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.  

9.  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).

10.  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.

11.  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.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

CONCLUSIONS:

1.  Attorneys for either the applicant or his former spouse should have been aware of the requirement for either the applicant to make a written request within one year of the divorce to change his SBP coverage to former spouse coverage or for his former spouse to make a written request within one year of the divorce for a deemed election of the SBP.  Neither the applicant nor his former spouse did so but the applicant has requested within a reasonable period of time to correct the error.  He has not remarried.  It would be equitable to show that he made a written request to change his SBP spouse coverage to former spouse coverage within one year of his divorce. 

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant requested on 1 April 2000 to have his SBP coverage changed to former spouse coverage, reduced base amount.
The Defense Finance and Accounting Service will be instructed to collect any SBP premiums due.

BOARD VOTE:  

__inw___  __hof___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001062391	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.