PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 August 2002
	DOCKET NUMBER:   AR2002073887

	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. JoAnn H. Langston		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage within the required time frame.

3.  The applicant states the divorce decree ordered him to maintain his former spouse as the SBP beneficiary.  Neither he nor his former spouse was aware that they had to make this change in writing within one year of the divorce.  He has continued to pay into the SBP.  He has never remarried.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 16 March 1957.  He retired on 1 June 1977.  He enrolled in the SBP at that time for spouse and children coverage, reduced base amount.  

5.  The applicant divorced on 21 March 2000.  In pertinent part the divorce decree ordered him to "…contribute to the cost to maintain Wife as a survivor on his military pension."

6.  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.  

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.  Although the evidence shows that neither the applicant nor his former spouse made a written request to change his SBP coverage to former spouse coverage within the one-year time frame, the applicant states that it is his intention to abide by the court order to provide such coverage.  As the applicant has not remarried, it would be equitable to show that he changed his SBP coverage within the given time frame.

2.  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 showing that the applicant made a written request to change his SBP coverage to former spouse and children coverage on 1 May 2000 and that his request was received and processed by the appropriate office in a timely manner.

BOARD VOTE:  

__JHL __  __ RVO  _  __BJL __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__JoAnn H. Langston  _
		   CHAIRPERSON

INDEX
CASE ID	AR2002073887	
SUFFIX		
RECON		
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
GRANT	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.