PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 June 1999                   
	DOCKET NUMBER:   AR1999015480

	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. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		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 from “children only” to “spouse and children.”

3.  The applicant states he has been trying for a long time to get this corrected.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 25 March 1963.  He married his first spouse on 29 May 1979.  

5.  Apparently divorce proceedings were initiated in Germany shortly before the applicant retired.

6.  The applicant retired on 1 May 1987.  In completing DA Form 4240, Data for Payment of Retired Army Personnel, he listed his status as single but elected “spouse and children” SBP coverage, reduced amount ($300.00).

7.  The German court’s divorce decree became binding on 30 June 1987.  The decree does not mention SBP.

8.  The applicant remarried on 24 November 1987.

9.  Public Law 92-425, 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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

10.  Public Law 94-496, enacted 14 October 1976, reduced the waiting period for a new spouse’s eligibility to 1 year following post-retirement marriage.

11.  Public Law 99-145, enacted 8 November 1985, permitted that a previously participating retiree upon remarriage may elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).

CONCLUSIONS:

1.  The Board concludes that a Government error did occur in this case.  The personnel clerk who assisted the applicant in completing the DA Form 4240 should have verified his marital status.  If he was single, he could not elect “spouse and children” coverage.  If he was still married, he should not have listed his status as single.  

2.  The Board concludes that the applicant did intend to provide SBP coverage for his current spouse.  If he had properly listed himself as still married (since his divorce was not final until 30 June 1987), his election of “spouse and children” coverage would have been valid.  Since the divorce decree did not order him to change coverage to “former spouse,” his current spouse would have been his eligible beneficiary automatically after one year of marriage.  

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:

     a.   showing that he was married on 1 May 1986, the date of his retirement and that he elected “spouse and children” SBP coverage effective this date;

     b.  showing that the “spouse” portion of his SBP was suspended effective     30 June 1987, the date of his divorce; and

     c.  showing that the “spouse” portion of his SBP was reinstated effective         1 December 1988, the first day of the month after the first anniversary of his remarriage.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.

BOARD VOTE:  

__EB____  __RJW__  __JPS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015480	
SUFFIX		
RECON		
DATE BOARDED	19990609	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.