PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 June 1999                   
	DOCKET NUMBER:   AR1999015688

	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 records be corrected to show he elected “former spouse” coverage under the Survivor Benefit Plan (SBP).

3.  The applicant states that he was improperly counseled at the time of his retirement.

4.  The applicant’s military records show that he entered the Army as a commissioned officer on 30 May 1965.  He and his former spouse were already married.

5.  Divorce proceedings were initiated prior to the applicant’s retirement.  The final decree of divorce states “AND THIS DECREE IS FINAL ENTERED this 29th day of Aug 1990.”  The separation agreement had stated “The Husband agrees to elect to participate in the Survivor Benefit Plan…and designates ___as the beneficiary of said plan…”  However, there was apparently some question as to whether the divorce was final at this point or at the time of the applicant’s retirement.

6.  The applicant retired on 1 June 1993.  Apparently, in completing DA Form 4240, Data for Payment of Retired Army Personnel the applicant was advised to list his now-former spouse as his spouse and thus he elected “spouse only” coverage.  

7.  Apparently, the applicant was not provided a copy of the final divorce decree until February 1996, at which time he notified the Defense Finance and Accounting Service (DFAS) of his new status.  DFAS then determined that the SBP option he chose at retirement was invalid and apparently refunded to him all SBP costs that had been deducted from his pay.

8.  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.  

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

10.  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.

11.  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.

12.  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.

CONCLUSIONS:

1.  The Board concludes that a Government error that was compounded by the state court not providing the applicant a copy of the divorce decree until 1996 occurred in this case.

2.  The applicant’s final divorce decree was entered 29 August 1990 and it ordered him to provide for “former spouse” coverage.  If he had been aware that his divorce was final at the time he retired, he would have elected “former spouse” coverage and not “spouse” coverage as he was erroneously advised to do.

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 showing that the applicant elected “former spouse” SBP coverage, reduced amount, effective 1 June 1993, the date he retired.

2.  That the applicant be advised the Defense Finance and Accounting Service will be instructed to collect any SBP costs previously refunded to him.

BOARD VOTE:  

__EB____  __RJW__  __JPS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015688	
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.