PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 June 2002
	DOCKET NUMBER:   AR2001065650

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O’Shaughnessy, 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, 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 after their divorce, she and the FSM continued to share the same residence without a lapse of separation, neither remarried, and he continued to pay into the SBP.

4.  The FSM’s military records show that he enlisted in the Regular Army on       10 January 1949.  He retired on 1 February 1969.  He and the applicant married on 5 February 1971.  Records at the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) indicate he enrolled in the SBP on 1 July 1982 for spouse coverage.  

5.  The FSM and the applicant divorced on 8 April 1987.  The divorce decree did not mention the SBP.  

6.  The FSM’s last will and testament, dated 17 November 1992, bequeathed to his “loving companion” (the applicant) all of his estate except $1,800 to be shared by his three sons and what was needed to pay his just debts and funeral expenses “in love and affection for personally taking care of” him.  He nominated and appointed her the executrix of his last will and testament.

7.  The FSM died on 22 December 1995.  The applicant was appointed the executor-administrator of his estate.  Records at DFAS-CL indicate the FSM continued to pay SBP premiums until his death.  DFAS-CL could not determine from the available records if any SBP premiums had been refunded to the next of kin.

8.  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.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

9.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs will be suspended if marriage ends in death or divorce.

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.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The FSM and the applicant divorced after the law provided for former spouse coverage and he could have changed his SBP coverage even though the court did not direct him to do so.

2.  However, it appears that it was the FSM’s intent to provide for the applicant, both with the SBP and otherwise.  His last will and testament clearly made her
the primary beneficiary of his estate.  She was appointed the executor-administrator of his estate in compliance with his wishes.  He had continued to pay SBP premiums until his death.  Notwithstanding that it was Congress’ intent that the SBP should provide for those spouses who shared the member’s military career, it appears that it would be equitable in this case and in conformance with the FSM’s intentions to correct his records to show he changed his SBP coverage to former spouse coverage.

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 coverage to former spouse coverage on 1 May 1987.

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 election to participate in the SBP retroactive to 22 December 1995, the date of his death.

BOARD VOTE:  

_SK___  ___JTM__  __TEO____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		          Stanley Kelley     _
		         CHAIRPERSON

INDEX

CASE ID	AR2001065650	
SUFFIX		
RECON		
DATE BOARDED	2002/06/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.