PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002068626

	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. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 he be refunded all Survivor Benefit Plan (SBP) premiums deducted from his retired pay from the date of his divorce in 1982 to the present.

3.  The applicant states that he called the Army in 1982 requesting information concerning being removed from the SBP.  He was told that if he was removed from the SBP he could not be reinstated.  He was never informed otherwise.

4.  The applicant’s military records show that, after having had prior enlisted service, he was commissioned in January 1943.  He retired from active duty on  1 December 1963.  He enrolled in the SBP in January 1974 apparently when he was married to Lillie.  It is not known how that marriage terminated.  He married Joyce on 6 July 1976 and they divorced on 16 April 1982.  The divorce decree did not mention the SBP.  He confirmed with the staff of the Board on 17 May 2002 that he never remarried after his 1982 divorce.

5.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members 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).

6.  Public Law 94-495, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.

7.  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.  

CONCLUSIONS:

1.  The applicant states that, after he divorced in 1982, he requested that he be “removed” (i.e., disenrolled) from the SBP.  He does not state that he mentioned to the Army that he was divorced.  It appears that he was informed, correctly, that if he was removed/disenrolled from the SBP he could not be reinstated.

2.  It appears that the applicant did not give enough information to the Army in 1982 and that the Army did not make inquiries as to why he was requesting disenrollment.  Had the Army learned that he had divorced and no longer had an eligible beneficiary, his spouse coverage would have been suspended.  Since he did not remarry after his 1982 divorce, his last SBP premiums would have been deducted on or about 1 May 1982.  

3.  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 applicant provided the appropriate office a copy of his divorce decree on 1 May 1982 and that his SBP spouse coverage was suspended on 1 May 1982.

2.  That as a result of the above correction, any SBP premiums deducted from the applicant’s retired pay since 1 May 1982 were deducted in error and all such premiums should be refunded to him.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mdm___  __le____  __kyf___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068626	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.