PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:                28 October 2003
	DOCKET NUMBER:        AR2003088832

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Maria J. Troup		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 Survivor Benefit Plan (SBP) coverage be changed from spouse to former spouse coverage.

3.  The applicant states that he made a mistake.  He did not realize he had to change his spouse's marital status from spouse to former spouse within a year of their divorce to keep her as his SBP beneficiary.  In support of his application, he submitted an e-mail from the Defense Finance and Accounting Service (DFAS); three letters to DFAS regarding his SBP beneficiary status; his letter to the Commander, U.S. Army Reserve Personnel Command requesting change of his SBP election; an email from the Deputy Director, Benefits Information Department; and a response letter from DFAS.

4.  The applicant’s military records show that he was married on 19 January 1965.  He retired from the Regular Army on 1 October 1998.  At that time, he completed a DD Form 2656 (Data For Payment Of Retired Personnel) and elected to participate in the SBP for spouse only coverage, full base amount.

5.  The applicant divorced on 3 December 1998.  The divorce decree states in pertinent part, "Complainant shall elect to make the Defendant the sole primary beneficiary in the maximum amount of his United States Army Survivor Benefit Plan (SBP) within sixty (60) days of the date of the filing."

6.  By letter dated 11 December 2001, the applicant wrote to DFAS.  He informed DFAS that he was divorced on 3 December 1998 and that SBP costs had been deducted from his retired pay during this entire time.  He stated that he would like his former spouse to stay as his SBP beneficiary.

7.  In a telephone conversation with the applicant on 9 October 2003, he revealed he had not remarried.

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 coverage for former spouses of retiring members.

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

CONCLUSIONS:

1.  The applicant divorced in December 1998 and the divorce decree awarded his former spouse the SBP.  There is no evidence of record which shows the applicant made a request to change his spouse's marital status to former spouse within one year of the divorce.

2.  However, based on the applicant's statement to DFAS, he continued to pay SBP premiums.  

3.  Considering there is evidence to show it was the applicant's intent to provide SBP coverage for his former spouse, it would be equitable to correct his records to show he changed his SBP coverage to former spouse coverage.

4.  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 requested that his SBP coverage be changed to former spouse coverage on 1 January 1999.

BOARD VOTE:  

RJW____  LDS_____  MJT____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond J. Wagner_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088832	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031028	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.0400	
2.		
3.		
4.		
5.		
6.