PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          18 November 2003                    
	DOCKET NUMBER:  AR2003088807

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning 		Member	
	Ms. Barbara J. Ellis 		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, in effect, that the FSM enrolled in the SBP for spouse coverage and that he continued to make payments for this benefit until the time of his death.  She also contends that they divorced in 2001 and neither remarried.  She also contends that as part of the divorce decree, it was ordered that she continue to be the beneficiary of the SBP.  In support of her application, she submits an affidavit from her daughter and a copy of the FSM's death certificate.   

4.  The FSM and the applicant married on 29 March 1948.  His military records show that, after having had prior enlisted and commissioned service in the U.S. Marine Corps, he was commissioned a first lieutenant in the U.S. Army Reserve on 30 June 1957.  He was ordered to active duty on 14 July 1957. 

5.  The FSM retired on 1 November 1966 after completing 20 years of active service.  He enrolled in the SBP on 1 October 1973 for spouse coverage, full base amount.

6.  The FSM and the applicant divorced on 7 March 2001.  The divorce decree indicates that the FSM was to continue to pay the monthly allotments for SBP and that the applicant would continue as the beneficiary under the SBP. 

7.  The FSM died on 7 February 2003.  The death certificate shows his marital status as divorced.

8.  Records at the Defense Finance and Accounting Service (DFAS) show the FSM continued to pay SBP premiums until his death.  

9.  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.  

10.  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.  

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

12.  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 there is no evidence to show that either the FSM or the applicant requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears that it was the FSM's intention to provide the SBP annuity to the applicant.

2.  The FSM continued to pay SBP premiums after their divorce and he never remarried.  It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.

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 made a written request to change his SBP coverage to former spouse on 1 April 2001 and the request was accepted and processed by the appropriate office in a timely manner.

2.  That the applicant be paid the SBP annuity effective 7 February 2003, the date of the FSM's death.

BOARD VOTE:  

JNS___  MDM____  BJE_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003088807	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.1800	
2.		
3.		
4.		
5.		
6.