PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 June 2000                   
	DOCKET NUMBER:   AR1999029726

	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. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage.

3.  The applicant states that the divorce decree stated she was to be the SBP beneficiary.

4.  The FSM’s military records show that he was commissioned and entered active duty on 7 April 1942 and retired on 1 October 1969.  At the time he retired he had the Reserve Serviceman’s Family Protection Plan, type of coverage unknown.  On 1 June 1973, he elected to participate in the SBP for spouse coverage.

5.  The FSM apparently either divorced or became a widower at some point.  On 5 November 1981, he married the applicant.  On 27 January 1992, the FSM and the applicant divorced.  The divorce decree states in pertinent part “…Husband shall keep his survivor benefit plan through the United States Army in effect, until death, with Wife named as the benefactor…”

6.  The FSM continued to pay SBP premiums until April 1998 when they were refunded to him for an unknown reason.  He died on 9 March 1999.

7.  Public Law 92-245, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and established the SBP.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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law. 

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

9.  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 or was still on active duty and had not yet made an SBP election.

10.  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.

CONCLUSIONS:

1.  The evidence of record shows the FSM continued to pay SBP premiums for    6 years after his divorce.  For an unknown reason but possibly only because the Defense Finance and Accounting Service (DFAS) discovered that neither he nor the applicant took the required steps to request former spouse coverage within one year of their divorce, the premiums were repaid to him in May 1998.  The Board concludes it was the FSM’s intent to provide the SBP to the applicant.  He had never remarried.

2.  In view of the foregoing, it would be in the interest of justice to correct the records 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 applied for “former spouse” coverage on     27 January 1992, the date of the divorce.

2.  That the applicant be paid an annuity based upon the FSM’s change in coverage retroactive to 9 March 1999, the date of his death.

3.  That DFAS waive payback of those SBP premiums refunded to the FSM in May 1998.  However, DFAS will be instructed to collect all SBP premiums due after April 1998 as a result of the correction noted in paragraph 1 above.

BOARD VOTE:  

__owt___  __kan___  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Orville W. Troesch, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999029726	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.