PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 October 1999                   
	DOCKET NUMBER:   AR1999031600

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Karol A. Kennedy		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 records be corrected to show that he changed his spouse (and dependent children) Survivor Benefit Plan (SBP) coverage to former spouse (and dependent children) coverage.

3.  The applicant states that he believed when his former spouse provided the Defense Finance and Accounting Service (DFAS) a copy of the divorce decree that that was sufficient to provide for payment of one-half of his retired pay (which did occur) and as a deemed election for SBP former spouse coverage (which did not occur).

4.  The applicant’s military records are not available.  The information contained herein was obtained from documents provided with his application.

5.  The applicant completed DA Form 4240, Data for Payment of Retired Pay on 15 October 1991.  He had elected spouse and dependent children coverage, full base amount.

6.  The applicant and his spouse divorced on 27 December 1995.  The divorce decree states in pertinent part “…husband shall make such arrangements as are within his control to maintain the Survivor Benefit Program associated with the Army pension in effect for wife.”

7.  The applicant’s former spouse apparently forwarded a copy of the divorce decree to DFAS.  A DFAS internal memorandum dated 21 February 1996 states “Per the attached decree, the former spouse is designated as the beneficiary of the member’s survivor benefit plan.  Please review the attached decree and process accordingly.”

8.  The applicant remarried on 29 November 1996 and SBP was resumed for the applicant’s current spouse about December 1997.

9.  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.  

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

11.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

12.  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.

13.  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 applicant and his first spouse divorced on 27 December 1995 and the divorce decree stated that he would maintain his former spouse as his SBP beneficiary.  The former spouse did forward the divorce decree to DFAS within the required time frame and there is evidence to show that there may have been an accompanying letter requesting a deemed election of former spouse coverage.  

2.  The applicant states that it was his belief his former spouse made the deemed election.  The Board concludes that the former spouse did request a deemed SBP election within the one-year time limit that for some reason was not processed. 

3.  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 the applicant elected former spouse and dependent children coverage on 27 December 1995, the date of his divorce.

BOARD VOTE:  

__jhl___  __kak___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			JoAnn H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031600	
SUFFIX		
RECON		
DATE BOARDED	19991014	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.