PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 April 2000                   
	DOCKET NUMBER:   AR1999031340

	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. Robert G. Hinkle		Chairperson	
	Mr. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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) election be changed to former spouse coverage.

3.  The applicant states that he assumed that when his retired pay was awarded to his former spouse that the SBP change would be made at the same time.  He has recently discovered it was not.  He has continued to pay the SBP premium from the time of his divorce to the present and requests that his former spouse be named the beneficiary.

4.  The applicant’s military records show that he retired on 31 July 1969.  In 1972, he elected to enroll in the SBP for spouse coverage.  The applicant and his spouse divorced on 29 November 1988.  The divorce decree states in pertinent part “Respondent is ordered to continue to keep the said Survivor Benefit Plan annuity in full force and effect …Respondent is ordered to maintain petitioner as the beneficiary of said annuity.”  SBP costs have been taken from his retired pay since then through the present.  On 17 March 2000, he confirmed that he is not now married.

5.  Public Law 92-245, the SBP, enacted 21 September 1972, 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. 

6.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

7.  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.

8.  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 Board concludes that, although the applicant did not take the required steps to change his SBP coverage nor did his former spouse make a deemed election within the one-year period allowed by law, it was the applicant’s intent to abide by the provisions of the divorce decree. 

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant changed his SBP coverage to former spouse coverage on 29 November 1989, the date of his divorce.

BOARD VOTE:  

__rgh___  __bje___  __jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Robert G. Hinkle
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031340	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.