PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            5 April 2000                  
	DOCKET NUMBER:   AR1999029577

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 to former spouse coverage.

3.  The applicant states that he was not aware he needed to file an SBP election statement requesting former spouse coverage within one year of his divorce.  He thought the lawyers were going to take care of everything.  He was not aware of the problem until he applied for retired pay in 1997.

4.  The applicant's military records show that he was born on 29 March 1936.  He received his notification of eligibility for retired pay at age 60 (his 20-year letter) in 1976.  In 1979, during the first Open Season for reserve members, he elected to participate in the Reserve Component SBP (RCSBP) for spouse and child coverage.

5.  On 1 September 1993, the applicant and his spouse divorced.  The divorce decree states in pertinent part “…If Member already has elected spouse coverage under the RCSBP, he shall convert the spouse coverage to “former” spouse coverage within ninety (90) days from the date of this Order.” The applicant has not remarried.

6.  The applicant was eligible to apply for retired pay in 1996 but apparently did not do so until 1997.

7.  On 24 February 2000, the applicant informed this Board that he is willing to pay back any due premiums if he is granted relief.  He understood that the payback requirement could result in a substantial debt.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. 

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. 

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement 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.  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.

12.  The Defense Finance and Accounting Service (DFAS) has verified that the applicant’s RCSBP coverage was changed to child only coverage in 1996, when they apparently discovered he was divorced.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.  After his divorce, both the applicant and his former spouse failed to take the proper steps to change his RCSBP election to former spouse within the one-year time period prescribed by law, most likely because they depended on their lawyers to take the necessary action.

2.  However, the applicant has not remarried and has indicated that he is willing to pay back any RCSBP/SBP premiums due as a result of this correction.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing he changed his RCSBP election to former spouse and children effective 1 September 1993, the date of his divorce.

2.  That DFAS be instructed to collect any RCSBP/SBP premiums due as a result of the aforementioned correction in a manner mutually acceptable to the applicant and the Government.

BOARD VOTE:  

__rvo___  ___sk___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999029577	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.