PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 January 2002                   
	DOCKET NUMBER:   AR2001063381

	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. Elzey J. Arledge, Jr.		Member	
	Ms. Regan K. Smith		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 changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

3.  The applicant states that his former spouse was awarded the SBP when they divorced in July 1994.  In February 1995, he attempted to accomplish the change through correspondence with the Defense Finance and Accounting Service (DFAS) and, in addition, he went to his local personnel services office to complete the paperwork to effect this change.  That office did not provide him with copies of the forms but assured him that they would take care of the matter. His former spouse found out in June 2001 that the change was not effected.  

4.  The applicant’s military records show that, after having had prior service, he reenlisted in the Regular Army on 7 September 1976.  He retired on 1 January 1994.  At that time he enrolled in the SBP for spouse only coverage, full base amount.

5.  The applicant divorced in July 1994.  The divorce decree ordered him to maintain his former spouse as the SBP beneficiary and awarded her a portion of his retired pay.  On 19 February 1995, the applicant requested DFAS provide him the forms necessary to change his SBP election from spouse to former spouse in order to comply with the court directive.  He apparently completed the necessary forms but they never reached DFAS for processing.

6.  The applicant’s February 1995 Retired/Annuitant Pay Statement indicated that he was paying a former spouse allotment and had SBP premiums deducted from his retired pay.

7.  On an unknown date, the applicant remarried.  His current spouse concurs with his request to change his SBP coverage from spouse to former spouse coverage.

8.  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.  

9.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

10.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

11.  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.

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.  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.  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.  The applicant has provided evidence to show he requested information from DFAS on how to change his SBP election from spouse to former spouse coverage within one year of his divorce.  He believed this change was taken care of when he completed some forms at his local personnel service office.  Since at least one of his Retired/Annuitant Pay Statements indicated that he was paying a former spouse allotment and that SBP premiums were being deducted from his pay, it is reasonable to presume he may have believed that the two entries were directly related to each other and that his SBP coverage had been changed.

2.  The applicant has indicated that it was and is his intent to comply with the court order to change his SBP election to former spouse.  His current spouse has concurred in his request.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that on 19 February 1995 the applicant made a written request to 

change his SBP election from spouse to former spouse coverage and that his request was received and processed by the appropriate office in a timely manner.

BOARD VOTE:  

__rvo___  __eja___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001063381	
SUFFIX		
RECON		
DATE BOARDED	20020131	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.