PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 April 2000
	DOCKET NUMBER:   AR1999034344

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 her survivor benefit plan (SBP) status be changed from spouse to former spouse.  

3.  The applicant states, in effect, that in 1997 she and the former service member (FSM) were divorced.  The divorce degree contained an order that the FSM complete the necessary paperwork to ensure the applicant continue to be entitled to SBP benefits as the FSM’s beneficiary, in her former spouse status. The applicant contends that the FSM sent her the necessary paperwork to change her SBP status from spouse to former spouse in June of 1997, and that she signed the paperwork and mailed it to the Defense Finance and Accounting Service (DFAS) the same month.  She is now told that the paperwork changing her status was never received, even though it was never returned to her by the post office.  The applicant also contends that the intent of the FSM to designate her as SBP beneficiary is clear.  She basis this conclusion on the language of the divorce decree and the fact that the FSM continued to make premium payments up until the time of his death.  The applicant claims that she was unaware that her status had not been changed in the record until the FSM’s death.  The applicant has enclosed a copy of the divorce decree dissolving her marriage with the FSM in support of her application.

4.  The FSM’s military records show that he served on active duty from 
15 November 1974 until 30 November 1996 when he retired, in the rank of master sergeant/E-8.  At the time of his retirement the FSM had completed 
22 years and 16 days of active military service.

5.  The record contains a Department of Defense (DD) Form 2656 (Data for Retired Pay) completed by the FSM during his retirement processing.  This form verifies that the FSM elected spouse and children coverage based on his full gross retired pay under the SBP.  Block 30 (name of insurable interest or former spouse beneficiary) of the form contained the applicant’s name and she signed the form in block 35 (signature of spouse).  

6.  The applicant provided a copy of the final divorce decree, Number 30543, dated 18 July 1997, issued by the District Court of the 223rd Judicial District, Gray County, Texas, which dissolved the marriage of her and the FSM.  Page 
32 specifically addresses the SBP.  It states that the applicant was currently the named SBP beneficiary at that time, and that the FSM’s election to provide the SBP benefits to the applicant should be continued and maintained in full force and should not be altered or withdrawn by the FSM during his lifetime.  

7.  The SBP provisions of the divorce decree also ordered that the FSM immediately obtain, fully complete, sign, and return to the Secretary of the Army or such entity as may be required any documents necessary to continue the 
election to provide SBP benefits to the applicant, as his former spouse, and to simultaneously provide the applicant copies of these documents, papers, and forms.  It further ordered that the FSM do any other such acts, deeds, and things as are necessary to immediately designate the applicant as the SBP beneficiary and that he should not, during his lifetime, take any action to modify, amend, withdraw, or in any other manner alter the election to name the applicant beneficiary for SBP benefits. 

8.  The Uniformed Services Former Spouses’ Protection Act (USFSPA) 
(Title 10 of the United States Code, Section 1408) was established in Public Law (PL) 97-252 and amended in PL 98-94, PL 98-525; PL 99-145; PL 99-661; 
PL 100-180, and PL 101-510.  It decrees that state divorce courts, if they chose, may treat military retired pay as community property.  The USFSPA also does not create a Federal right to any portion of the military retired pay on behalf of the former spouse, but rather recognizes that the states may treat it as such. The USFSPA does not allow the law to confer an entitlement to a portion of retired based solely on length of marriage.

9.  Prior to Public Law (PL) 99-661 members could voluntarily elect SBP coverage for a former spouse under the Insurable Interest category.  For divorces finalized on or after November 14, 1986, PL 99-661 permits state courts to order SBP coverage.  If a member voluntarily elects SBP coverage for a former spouse and that agreement has been ratified or approved by a court order, or, if the member has been ordered to elect SBP coverage for a former spouse, the retired member must make that election within one year of the date of the divorce.  A former spouse, within one year of the date of divorce may submit to the Defense Finance and Accounting Service a request that a "deemed" SBP election be established.  If neither the retiree nor the former spouse requests former spouse SBP coverage within one year of date of divorce, former spouse coverage will not be established.

CONCLUSIONS:

1.  The evidence of record makes clear that it was the intent of the FSM to comply with the divorce decree court order that required that he effect the change of the applicant’s status from spouse to former spouse in order to ensure she remained the designated beneficiary for receipt of SBP benefits.  

2.  The Board concluded that the appropriate documents not arriving at the DFAS within a year of the divorce of the applicant and FSM was likely the result of an administrative error, and not because the FSM made a conscious decision to deny the applicant SBP benefits.  Therefore, in the interest of justice and equity, the Board concluded it would be appropriate to correct the record to change the applicant’s status from spouse to former spouse, effective 18 July 1997, the date of the final divorce decree, and to designate the applicant as a former spouse beneficiary of the FSM’s SBP benefits. 

3.  The Board was unable to determine from the available evidence whether or not the applicant had actually been denied SBP benefits.  However, based on the Board’s decision that the applicant should never have lost her entitlement to SBP benefits as a result of her status change from spouse to former spouse, the Board concluded that it would be appropriate to pay the applicant any SBP annuity benefits denied her subsequent to the death of the FSM.

4.  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 changing the status of the individual concerned from spouse to former spouse, effective 18 July 1997, and continue to show her as the SBP beneficiary in that status.  

2.  That the individual concerned, as the former spouse of the FSM and proper beneficiary for SBP benefits, be paid any back SBP annuities denied her subsequent to the FSM’s death.  

BOARD VOTE:  

___eb___  ___klw __  __tap ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Elizabeth Buchanon____
		        CHAIRPERSON

INDEX

CASE ID	AR1999034344	
SUFFIX		
RECON		
DATE BOARDED	2000/04/27	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000	
2.		
3.		
4.		
5.		
6.