RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  10 February 2004
	DOCKET NUMBER:  AR2003087764

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda M. Barker		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that she, as the former spouse, be granted a Survivor Benefit Plan (SBP) annuity from her deceased former husband.

2.  The applicant states that the divorce court awarded her this benefit.

3.  The applicant provides correspondence from the Defense Finance and Accounting Service (DFAS) and her Decree of Divorce.

CONSIDERATION OF EVIDENCE: 

1.  The deceased former service member's records show that he served on active duty from 29 August 1961 through 31 August 1981 when he was retired in the pay grade of E-7.  The applicant and the deceased former service member were married from 18 November 1961 through 9 July 1996.  The former service member died on 5 September 1998.  His Certificate of Death shows his marital status as divorced.

2.  A letter from DFAS to a Member of Congress states that the deceased former service member elected spouse and child coverage prior to his retirement but the children became ineligible annuitants upon reaching age 22 and the applicant became an ineligible annuitant upon her divorce from the deceased former service member on 9 July 1996.  DFAS further notes that neither the deceased former service member nor the applicant made an election or a deemed election to provide SBP coverage to the former spouse.  DFAS has confirmed that deductions for SBP coverage continued from the former service member's retired pay until his date of death and no one else has applied for the annuity.

3.  The Judgment and Decree provided by the applicant states that the marriage between the applicant and the deceased former service member was dissolved on 9 July 1996 and that the applicant was awarded one half of the deceased former service member's net Army retired pay to be paid directly by the Army or by the deceased former service member beginning on 9 July 1996.  The document is silent on any issue surrounding SBP entitlements.

4.  Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  SBP coverage is suspended when there is no eligible beneficiary.

5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

6.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

7.  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. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant and the deceased former service member were married almost 35 years and over 19 years of his military service, there is no evidence of record to show that the deceased former service member ever elected to change his SBP coverage from spouse to former spouse.

2.  There is no evidence submitted by the applicant to show that SBP coverage for her as a former spouse was directed or addressed in the Decree of Divorce.

3.  Notwithstanding the above facts, it was Congress's intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her career.  The applicant was married to the deceased former service member for the majority of his military career and that, as a matter of equity, the applicant should be granted the SBP annuity.  Therefore, the deceased former service member's records should be corrected to show that he changed his SBP coverage to former spouse on 8 July 1997.

BOARD VOTE:

__js___  ___lb_____  __rd____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION: 

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the deceased former service member changed his SBP coverage to former spouse on 8 July 1997, making the applicant eligible for SBP payments retroactive to the date of his death.

		___John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2003087764	
SUFFIX		
RECON		
DATE BOARDED	20040210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.