PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 August 2002
	DOCKET NUMBER:   AR2002072819

	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. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 the divorce decree ordered him to change his SBP to former spouse coverage.  His spouse concurs in his request to change his SBP.

4.  The applicant’s military records show that he enlisted in the Regular Army    on 22 August 1968.  He married on 12 December 1970.  He divorced on           18 December 1992.  The divorce decree states in pertinent part that he agreed to elect to make his former spouse his SBP beneficiary no later than 1 July 1993 and that he acknowledged that the election must be made within one year of the decree of divorce.

5.  The applicant remarried.  He retired on 1 February 2001.  On his Data for Payment of Retired Personnel, DD Form 2656, dated 19 January 2001 he indicated that he elected spouse and children SBP coverage, full base amount.  He still had one minor child from his previous marriage.

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.  

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.

10.  Title 10, U. S. Code, section 1448(b)(4) provides that a person who elects to provide an annuity for a former spouse may, at the time of the election, elect to provide coverage under the annuity for both the former spouse and a dependent child, if the child resulted from the person’s marriage to that former spouse.

CONCLUSIONS:

1.  When the applicant divorced in 1992, the divorce decree noted that he agreed to maintain his former spouse as his SBP beneficiary.  The decree may have been confusing because it indicated he acknowledged that the election must be made within one year of the decree of divorce; however, he was still on active duty and could not yet make an initial SBP election.  When he retired nine years later, in 2001, he elected spouse and children coverage.

2.  The applicant intends now to abide by the divorce decree by changing his SBP coverage to former spouse coverage.  His current spouse concurs in his request.  It would be appropriate to show that he elected former spouse and children coverage at the time he retired.

3.  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 correcting his DD Form 2656 dated 19 January 2001 to show that he enrolled in the SBP for former spouse and children coverage and that his spouse concurred in his election.

BOARD VOTE:  

__JNS __  __INW __  __JAM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___       John N. Slone      ___
			Chairperson

INDEX

CASE ID	AR2002072819	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.