PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002068603

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 his Survivor Benefit Plan (SBP) coverage be changed to former spouse coverage.

3.  The applicant states that when he retired he was separated from Cynthia.  He declined the SBP but she accepted it so he was automatically enrolled.  The divorce decree in 1996 ordered that Cynthia be retained as his SBP beneficiary.  Someone changed the beneficiary to his wife Alice without notifying him.  

4.  The applicant’s military records show that, after having had prior service, he reenlisted in the Regular Army on 1 December 1969.  He and Cynthia married on 26 May 1973.  

5.  The applicant retired on 1 June 1993.  At that time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240.  In Part V, he declined SBP coverage.  His spouse Cynthia was not available for counseling.  A spousal non-concurrence statement was sent to her.  She returned it, indicating that she non-concurred in his SBP election and wanted SBP coverage.  The applicant was thereupon enrolled in the SBP.

6.  The applicant and Cynthia divorced in October 1996.  The Domestic Relations Order ordered the applicant to elect to designate Cynthia as a former spouse beneficiary.  If he failed to do so, Cynthia was directed to apply for a deemed election.  No time limit was mentioned.  Apparently, neither of them followed the court’s instructions within the one-year time limit provided for by law.  Records at the Defense Finance and Accounting Service – Cleveland Center indicate his spouse attempted to make a deemed election in April 1998.

7.  The applicant and Alice married on 3 April 1997.  On 13 May 2002, Alice concurred with the applicant’s request to change his SBP coverage to former spouse coverage.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.

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.  

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage.

11.  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.

12.  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.  Although the applicant declined the SBP when he retired in 1993, he was still legally married and his spouse’s concurrence with his declination was required.  His spouse did not concur with his declination and he was automatically enrolled in the SBP.

2.  When the applicant divorced Cynthia in October 1996, the court ordered him to elect former spouse coverage.  If he failed to do so, Cynthia was directed to request a deemed election.  The court failed to mention there was a time limit in which to accomplish these actions and neither the applicant nor Cynthia took the required actions within the one-year time limit provided for by law.

3.  The applicant is now requesting action be taken so he may comply with the divorce court’s order.  His current spouse has concurred in his request to change his SBP coverage to former spouse coverage.

4.  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 the applicant requested that his SBP coverage be changed to former spouse coverage on 1 November 1996.

BOARD VOTE:  

__RVO__  __RTD__  __KWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002068603	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.