PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            27 March 2003                  
	DOCKET NUMBER:   AR2003083486

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Raymond V. O'Connor		Member	
	Ms. Eloise C. Prendergast		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, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states, through counsel, that the FSM and she were married for   34 years.  Their divorce was amicable.  They drew up the divorce papers together, without benefit of an attorney.  The final divorce decree stated that she would be named as the SBP beneficiary.  The FSM continued to pay SBP premiums until his death.  

4.  The FSM’s military records show that he had prior service in the Air Force.  He and the applicant married on 2 July 1966.  He enlisted in the Regular Army on          4 September 1974.  He retired for disability on 18 December 1984.  At that time, he enrolled in the SBP for spouse and children coverage, full base amount.

5.  The FSM and the applicant divorced on 30 August 2000.  The divorce decree stated in pertinent part that the FSM agreed to continue the payments for the SBP and to name the applicant as the sole beneficiary.  

6.  The FSM died on 15 January 2002.  The death certificate shows his marital status as divorced.  The Defense Finance and Accounting Service verified that he paid SBP premiums until he died and that the SBP annuity is not currently being paid to anyone.

7.  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.  

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

9.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

10.  Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

11.  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.  Neither the FSM nor the applicant took the required actions to change the FSM's SBP coverage to former spouse (and children) coverage within the 1-year time limit established by law.  However, the FSM did not remarry and he continued to pay SBP premiums until he died.  

2.  It appears it was the FSM's intent to provide SBP coverage to the applicant after their divorce.  It would be equitable to correct his records to show that he did so.

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, to change his SBP coverage to former spouse and children coverage on 1 October 2000 and that his request was received and processed by the appropriate office in a timely manner.

2.  That the applicant be paid the SBP annuity effective 15 January 2002, the date of the FSM's death.

BOARD VOTE:  

__jhl___  __rvo___  __ecp___      GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003083486	
SUFFIX		
RECON		
DATE BOARDED	20030327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.