PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            20 November 2003  
	DOCKET NUMBER:  AR2003089958

	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 Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		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, be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states that she was married to the FSM during his entire        20-year career.  When they divorced, the divorce decree required the FSM to continue the SBP.  Her attorney failed to make a request for a deemed election.

4.  The FSM’s military records show that he and the applicant married on            3 November 1962.  He enlisted in the Regular Army on 9 July 1969.  He retired on 1 August 1989.  At that time he enrolled in the SBP for spouse only coverage, full base amount.

5.  The FSM and the applicant divorced on 14 March 1995.  The divorce decree stated in pertinent part that he would continue to pay the SBP.

6.  The FSM died on 19 September 2002.  The death certificate shows his marital status as divorced.  The Defense Finance and Accounting Service – Cleveland Center verified that he had continued to pay SBP premiums until his death and that no one is currently receiving the annuity.

7.  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.  

8.  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.  

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

10.  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 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.  The evidence of record shows that the FSM did not make a written request to change his SBP coverage to former spouse coverage nor did the applicant make a written request for a deemed election within one year of their divorce.  Nevertheless, it appears that it was the FSM's intention to comply with the provisions of the divorce decree as it pertained to the SBP in that he continued to pay SBP premiums until he died.  

2.  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 that his SBP coverage be changed to former spouse coverage on 1 April 1995 and that his request was received and processed by the appropriate office within a timely manner.

2.  That the applicant be paid the SBP annuity as a result of the above correction retroactive to the date of the FSM's death.

BOARD VOTE:  

__jl____  __lds___  __rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003089958	
SUFFIX		
RECON		
DATE BOARDED	20031120	
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.