PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 August 2002
	DOCKET NUMBER:   AR2002072861

	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. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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, the executor of the deceased former service member's (FSM's) estate, requests, in effect, that the records of the FSM be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states that the divorce decree ordered the FSM to designate the former spouse as his SBP beneficiary.  The former spouse believes this was simply an oversight as the FSM was extremely ill during the last few years of his life.

4.  The FSM’s military records show that he enlisted in the Regular Army on       30 September 1957.  He married the applicant on 30 May 1968.  He retired on    1 October 1977.  He declined to participate in the SBP at that time.

5.  Records at the Defense Finance and Accounting Service - Cleveland Center (DFAS-CL) show that the FSM enrolled in the SBP for spouse coverage effective 1 April 1993 during an Open Season.  He also enrolled in the Supplemental SBP (5 percent) at that time.

6.  The FSM and his former spouse divorced on 19 June 1998.  The property settlement agreement ordered the FSM to designate the former spouse as his SBP beneficiary and to continue to make the monthly premium payments.  

7.  The FSM died on 6 June 2001.  The death certificate indicates that he was divorced.  Records at DFAS-CL indicate that he paid SBP premiums up until his death.  DFAS-CL has no record that anyone else has submitted a claim for the annuity.

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.  

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

10.  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 member is participating in the SBP or was still on active duty and had not yet made an SBP election.

11.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 - 30 September 1992.  This law also established the SSBP.  The SSBP annuity (5, 10, 15 or 20 percent of full retired pay) would be paid in addition to the standard 35 percent-tier payment for surviving spouses age 62 and older.  

12.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

13.  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 FSM had enrolled in the SBP, with SSBP, effective 1 April 1993.  When he divorced in June 1998, he was ordered to designate his former spouse as his SBP beneficiary and to continue to pay the SBP premiums.  It appears he failed to change his SBP coverage from spouse to former spouse coverage and the former spouse failed to make a request for a deemed election within the one-year time frame required by law.

2.  However, the FSM continued to pay the SBP premiums (as ordered by the court) until his death.  The available evidence shows that he did not remarry.  The Board presumes that the FSM believed his continuing to pay the SBP premiums would enable his former spouse to receive the SBP annuity after his death. It would be equitable to correct his records to show that he changed his SBP coverage to former spouse coverage in a timely manner as required by law.

3.  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 showing that the FSM requested, in writing, that his SBP coverage be changed to former spouse coverage on 1 July 1998 and that his request was received and processed by the appropriate office in a timely manner.

2.  That the FSM's former spouse be paid the SBP annuity retroactive to 6 June 2001, the date of the FSM's death.

BOARD VOTE:  

__MKP__  __CJP __  _ _HBO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2002072861	
SUFFIX		
RECON		
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.