PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 June 2002
	DOCKET NUMBER:   AR2002069360

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Richard T. Dunbar		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 that he agreed in their divorce decree that his former spouse would continue to be the SBP beneficiary.  He only discovered recently that she was not being covered.  He has not remarried.  

4.  The applicant’s military records show that he entered active duty on 16 March 1972 and retired on 1 July 1998.  At that time he enrolled in the SBP for spouse only coverage, full base amount.

5.  The applicant divorced on 15 September 1998.  The Separation Agreement/Property Settlement states that the applicant agreed “…to make the wife the sole primary beneficiary of the Survivor Benefit Plan (SBP) within sixty (60) days of the date of the filing of the parties’ divorce decree…elect the spouse-only portion…”

6.  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.  

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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

8.  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.

9.  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.  The applicant agreed in the Separation Agreement/Property Settlement to maintain his former spouse as the SBP beneficiary.  He and his former spouse may have been misled by the wording of the Agreement, i.e., “to elect the spouse-only portion,” because he already had elected spouse only coverage.  Had the Agreement correctly read, “to elect the former spouse only portion,” either the applicant or his former spouse might have taken the proper steps within the statutory time frame to effect the change required by the Agreement.

2.  In any case, the applicant has indicated that it is his intent to abide by the Agreement and he has not remarried.  It would be appropriate to correct his records to show he changed his SBP coverage to former spouse coverage.

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 the applicant changed his SBP coverage to former spouse coverage on 1 October 1998.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.  

BOARD VOTE:  

__INW__  __KAN__  __RTD___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Irene N. Wheelwright ___
		        CHAIRPERSON

INDEX

CASE ID	AR2002069630	
SUFFIX		
RECON		
DATE BOARDED	2002/06/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.