PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2003084760


         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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 and that his former spouse be entitled to a military identification (ID) card and privileges.

3. The applicant states, in effect, that the divorce decree awarded his former spouse the SBP. In addition, when they divorced in July 1991 she was issued an ID card with full benefits for 4 years and had renewed it ever since. She was told that since he retired in August 1981 she fell under the 15-year rule and would have full benefits for the rest of her life as long as she did not remarry. In April 2002, his former spouse retired to New Jersey and elected to take early Social Security benefits. She then received a letter in June 2002 telling her that she no longer had any benefits and a mistake was made years ago giving her full benefits. The law had been changed in the mid to late 1980s and the date of the divorce counted towards eligibility. Had they divorced before the law changed, she would still have full benefits. He questions how a law can be made to take away benefits retroactively. Also, had she been advised in timely manner (not 11 years later) that a mistake had been made, she could have led her life differently. She could have remarried and worked full-time to have health benefits until age 65 and then retired.

4. The applicant’s military records show that he entered active duty as a commissioned officer on 8 July 1961. He married his former spouse (born on 10 July 1940) on 20 January 1962. He retired on 1 August 1981. At that time, he enrolled in the SBP for spouse and children coverage, full base amount.

5. On 3 May 1991, the applicant and his former spouse divorced. In pertinent part, the divorce decree states that he agreed, at his former spouse's option, to provide full survivor benefit coverage for his former spouse. If she elected coverage, she agreed that the total expense of such coverage would be deducted from the amounts to which she was entitled under paragraph 4 of the decree (a portion of his retired pay).

6. On an unknown date, the applicant remarried. As of 20 March 2003, he apparently had been remarried for more than one year. He provides his spouse's concurrence with his request to change his SBP to former spouse coverage.

7. The applicant's former spouse was last issued an ID card on 22 March 2002. Apparently, she had been obtaining health care coverage through the Sierra Military Health Service from at least 1998 through 2001.

8. By letter dated 7 June 2002, the applicant's former spouse was notified by the U. S. Total Army Personnel Command (PERSCOM) that they reviewed her DEERS (Defense Enrollment Eligibility Reporting System) record. The review determined that she did not meet the criteria for full former spouse benefits and her eligibility for an ID card in fact expired on 3 May 1992, one year from the final date of her divorce. She was informed that ID card privileges are established by law and PERSCOM did not have the authority to waive the policy. She was advised that she could be eligible to receive medical care through the Continued Health Care Benefit Program which is available to former spouses who lose entitlements to military health care. She was given a point of contact address and telephone number. She was also advised that she might qualify to receive care as a Secretarial Designee, which is an individual who is authorized by Service Secretaries to receive medical treatment in their respective services' military medical treatment facilities in the United States. She was given a point of contact address and telephone number.

9. 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.

10. 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.

11. 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 member was participating in the SBP 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. 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.

14. Title 10, U. S. Code, section 1071 states that the purpose of chapter 55 (Medical and Dental Care) is to create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services and for their dependents.

15. Title 10, U. S. Code, section 1072(2)(F) defines "dependent" as the unremarried former spouse of a member or former member who, on the date of the final decree of divorce, had been married to the member or former member for a period of at least 20 years during which period the member or former member performed at least 20 years of service creditable for retired pay and does not have coverage under an employer-sponsored health plan.

16. Title 10, U. S. Code, section 1072(2)(G) continues with the definition of "dependent" as a person who is the unremarried former spouse of a member or former member who performed at least 20 years of service creditable for retired pay, and on the date of the final decree of divorce before 1 April 1985, had been married to the member or former member for a period of at least 20 years, at least 15 of which were during the period the member or former member performed service creditable for retired pay and does not have coverage under an employer-sponsored health plan.

17. Title 10, U. S. Code, section 1072(2)(H) further defines "dependent" as a person who would qualify as a dependent under clause (G) but for the fact that the date of the final decree of divorce is on or after 1 April 1985, except that the term does not include the person after the end of the one-year period beginning on the date of that final decree.

18. Title 10, U. S. Code, section 1086a(a) states that the Secretary of Defense shall inform each person who has been a dependent for a period for one year or more under section 1072(2)(H) of the availability of a conversion health policy or purchase by the person. A conversion health policy offered under this subsection shall provide coverage for not less than a 24-month period beginning on the later of the date the person is no longer a dependent under section 1072(2)(H) and the date of the purchase of the policy.

CONCLUSIONS:

1. There is no Government error in this case relating to the SBP issue. Neither the applicant nor his former spouse took the required steps to change his SBP election to former spouse coverage within the 1-year time frame required by law.

2. However, it is the applicant's intention to now comply with the order of the divorce decree. His current spouse concurs in his request to change his SBP coverage from spouse to former spouse coverage. As it was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career, it would be equitable to make the requested correction.

3. The Board regrets that the applicant's former spouse was not notified until years after the fact that she was not eligible for a military ID card and privileges for more than one year after their divorce.

4. It appears the applicant's former spouse could still apply for a conversion health policy offered under the provisions of Title 10, U. S. Code, section 1086a(a), as she was informed by PERSCOM. That policy would provide her with health coverage for not less than a 24-month period beginning on the date of the purchase of the policy. If she purchased that policy now, it appears that it would provide her with health coverage until about the time she became eligible for Medicare. The applicant's former spouse could also seek to become a Secretarial Designee.

5. In view of the foregoing, the applicant’s records should be corrected but only 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 that his SBP be changed to former spouse and children coverage on 1 June 1991 and that his request was received and processed by the appropriate office in a timely manner.

2. That so much of the application as pertains to entitlement to a military ID card and privileges for the applicant's former spouse be denied.

BOARD VOTE:

_rvo_____ __sk____ _gjw____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond V. O'Connor
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003084760
SUFFIX
RECON
DATE BOARDED	20030522
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	137.04
2.
3.
4.
5.
6.