PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 May 1999                   
	DOCKET NUMBER:   AR1999015656

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 to “former spouse.”

3.  The applicant states that he agreed to SBP coverage, full amount, for his ex-wife in his property settlement agreement; however, the election was not made within one year of his divorce.

4.  The applicant’s military records show that he retired from active duty on         1 October 1995.  Apparently at this time he elected SBP, “spouse” coverage.

5.  The applicant was divorced on 19 June 1996.  On 3 October 1996, a Qualified Domestic Relations Order required the applicant to elect SBP with maximum benefit in favor of his ex-wife.

6.  On 17 November 1997, the former spouse made a deemed election for “former spouse” coverage.  The Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) denied her request because it was received outside of the one-year period allowed by law.

7.  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.  

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

10.  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.

11.  Title 10, U. S. Code, section 1450(f)(2) 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.  There is no evidence of Government error in this case.  The law states that either the member or the former spouse must request “former spouse” coverage within one year of the date of divorce or final settlement.  The former spouse requested a deemed election but was one month outside the one-year time frame.

2.  However, it was clearly the applicant’s intent to comply with the court order.  Notwithstanding DFAS’s denial, it would be in the interest of justice to grant relief.

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 that the applicant requested to change his SBP to “former spouse” coverage on 3 October 1996, the date the Qualified Domestic Relations Order required him to do so.

BOARD VOTE:  

__JNS__  __RGH__  __RWA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015656	
SUFFIX		
RECON		
DATE BOARDED	19990519	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.