PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 August 2001                   
	DOCKET NUMBER:   AR2001057137

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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) election be changed to former spouse coverage.

3.  The applicant states that his former spouse was to remain the SBP beneficiary pursuant to the divorce decree.  He provides his current spouse’s concurrence with his request for change in his election.

4.  The applicant’s military records show that he was born on 6 October 1938.  After having had prior service in the Army National Guard, he entered the U. S. Army Reserve as a commissioned officer in 1968.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 6 September 1977.

5.  On 22 June 1979, the FSM enrolled in the Reserve Component SBP (RCSBP) during the first Open Season for spouse and children coverage, full base amount, option C.

6.  The FSM divorced on 13 April 1990.  The divorce decree stated in pertinent part “Respondent shall maintain his current participation in the Survivor Benefit Plan.  Respondent’s elections regarding this participation shall not be amended without the permission of this Court.”

7.  The FSM remarried on 11 November 1990.  

8.  In June 1998, the FSM applied for retired pay.  On the Data for Payment of Retired Personnel, DA Form 2656, he indicated that he elected spouse only SBP coverage.

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.  Elections are made by category, not by name, and are irrevocable except under certain circumstances.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage. 

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) 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.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  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.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The applicant originally elected RCSBP coverage in the category of spouse and child.  The statute required he make a written request to change his coverage to former spouse (and child) coverage within one year of the date of divorce.  In the absence of his doing so, his former spouse could have made a written request, within one year of the date of divorce, for a deemed election.  The Board notes, however, that the wording of the divorce decree in effect prohibited the applicant from doing what federal law required him to do, i. e., make a change to his RCSBP election.  

2.  The applicant’s SBP election upon applying for retired pay was neither required nor valid.  He had retained his spouse and child coverage based upon his original, irrevocable RCSBP election.

3.  However, the Board notes that it is now the applicant’s intention to comply with the divorce decree concerning the SBP and that his current spouse has agreed to his requested change.  RCSBP costs may be owed if his spouse coverage was suspended during the period between the date of his divorce and the date of his remarriage and it would be appropriate for those costs to be paid to the Government.
4.  In view of the foregoing, the applicant’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 showing that the applicant requested a change to his RCSBP from spouse and child coverage to former spouse and child coverage on 1 May 1990 and that his request was received and processed by the appropriate office.

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

BOARD VOTE:  

__rvo___  __cjp___  __lds___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057137	
SUFFIX		
RECON		
DATE BOARDED	20010830	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.