PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002068748

	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. John P. Infante		Member	
	Ms. Paula Mokulis		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 the records of her deceased former spouse, a former service member, be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse coverage.

3.  The applicant states that the divorce decree specified that the SBP annuity should be paid to her.  The FSM’s last will and testament designates her as the sole heir of his estate.  He paid the SBP premiums unfailingly until his death.  Supporting evidence is as listed on the DD Form 149.

4.  The FSM’s military records show that he initially entered active duty in an enlisted status on 28 March 1941.  He and the applicant married on 24 April 1943.  After having had a short break in service, he re-entered active duty as a commissioned officer on 15 September 1948.  He retired on 1 December 1962.

5.  On 1 March 1973, the FSM enrolled in the SBP for spouse coverage.

6.  On 5 November 1975, the FSM and the applicant divorced.  The Property Settlement Agreement stated in pertinent part, “…Husband elected to purchase, …the Survivor’s Protection Plan benefit for Wife…Husband specifically covenants and agrees that so long as he and Wife are both living, that he will continue his payment of Survivor’s Benefit Protection Plan…and that Wife shall be the irrevocable beneficiary thereof; and that Husband’s obligation so to do is an integral part of the within Property Settlement Agreement…” 

7.  The FSM died on 8 April 2001.  The death certificate shows his marital status as divorced.  The Defense Finance and Accounting Service verified that he paid SBP spouse premiums until his death, that the SBP annuity is not now being paid, and that the applicant has submitted a claim for the annuity.

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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  Elections are made by category, not by name.

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

10.  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.  

11.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
12.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

13.  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.  From the available evidence it appears that the FSM intended to abide by the provisions of the divorce decree to maintain the SBP for the applicant.  It appears he never remarried and he paid SBP premiums from the date of divorce in November 1975 until he died in April 2001.  However, although the FSM may have intended to provide the SBP for the applicant, there were no provisions for former spouse coverage until 24 September 1983.

2.  There is no evidence of Government error in this case.  Since the SBP is a Federal program governed by Federal statute, state courts and state law governing last wills and testaments have little direct authority over the program.  

3.  Had the FSM informed Army officials of his divorce, spouse premiums would have been suspended effective 1 October 1976.  

4.  It would be equitable to show that, effective 24 September 1983, the FSM requested his SBP be reinstated for former spouse coverage.  Up until                8 November 1985, however, the costs for former spouse coverage were made under the insurable interest provisions (more expensive than spouse coverage).  It would further be equitable to show that, on 8 November 1985, when the law changed to allow former spouse costs to be made under spouse provisions, the FSM requested that his SBP costs be changed to spouse provisions.  

5.  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:

     a.  showing that the FSM informed the Army on 1 December 1975 that he was divorced;

     b.  showing that the FSM again informed the Army on 1 October 1976 that he was divorced and that spouse premiums were suspended at that time;

     c.  showing that the FSM requested former spouse SBP coverage on            24 September 1983 and that his premiums, at the insurable interest rate, were re-instated; and

     d.  showing that the FSM requested former spouse SBP coverage under spouse provisions on 8 November 1985 and that his premiums were deducted at the spouse rate at that time.

2.  That the applicant be paid the SBP annuity retroactive to 8 April 2001, the date of the FSM’s death.

3.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.  If the amount due the Government from the increased premiums from 24 September 1983 to on or about 8 November 1985 is less than the amount overpaid by the FSM from         1 October 1976 to on or about 24 September 1983, the applicant will be refunded the difference.

BOARD VOTE:  

_RVO___  ___JPI__  __PM____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2002068748	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.