PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 September 2002
	DOCKET NUMBER:   AR2002074720

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		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 spouse to former spouse coverage.

3.  The applicant states that he wants his former spouse to be his SBP beneficiary as agreed in the divorce decree.  Neither he nor she knew they had to send in anything other than the divorce decree.  He has been paying SBP premiums since his retirement and he has not remarried.

4.  The applicant’s military records show that, after having had prior service, he reenlisted in the Regular Army on 23 August 1971.  He retired on 1 September 1991.  His Data for Payment of Retired Personnel (either DA Form 4240 or DD Form 2656) is not available; however, records at the Defense Finance and Accounting Service show he elected spouse and children coverage, full base amount at that time.

5.  The FSM divorced on 31 July 1998.  The divorce decree stated in pertinent part that the parties agreed to continue to fund the SBP and that the purpose of the SBP was to ensure the payment of military benefits to the FSM's former spouse in the event of the FSM's death.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

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

8.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

9.  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 divorce decree awarded the SBP to the FSM's former spouse.  The FSM states that he has not remarried.  Although neither he nor his former spouse took the action required by law to change his SBP coverage from spouse and children coverage to former spouse (technically, to former spouse and children coverage even though there may not currently be any eligible child beneficiary), it is now his intent to abide by the provisions of the divorce decree.  

2.  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, in writing, that his SBP coverage be changed to former spouse and children coverage on 1 August 1998.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__JHL__  __MDM__  ___REB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn H. Langston   _
		        CHAIRPERSON

INDEX

CASE ID	AR2002074720	
SUFFIX		
RECON		
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.