RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 21 October 2004
DOCKET NUMBER: AR2004103113
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. James E. Anderholm | |Chairperson |
| |Ms. Deborah S. Jacobs | |Member |
| |Mr. Ronald J. Weaver | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his Survivor Benefit Plan (SBP) coverage be
changed to former spouse coverage.
2. The applicant states that he was not aware until recently that he
should have made the change within one year of his divorce.
3. The applicant provides his divorce decree, a letter to the Defense
Finance and Accounting Service (DFAS) dated 3 November 2003, his current
marriage certificate, and his spouse's concurrence.
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the applicant enlisted in the Regular
Army on 17 March 1975. He retired on 1 June 1981. Records at DFAS show
that he elected to participate in the SBP for spouse and child coverage at
that time.
2. The FSM divorced on 6 October 1989. The court awarded his former
spouse the SBP. He remarried on 3 October 1992.
3. 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.
4. Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), enacted 8 September 1982, established SBP coverage for former
spouses of retiring members. Public Law 98-94, enacted 24 September 1983,
established former spouse coverage for retired members (Reservists, too).
5. 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.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's former spouse was awarded the SBP when they divorced in
1989. It appears that neither the applicant nor his former spouse took the
actions required by law to change his SBP or make a deemed election for the
SBP within one year of the divorce. When the FSM remarried in 1992, his
current spouse became the eligible SBP beneficiary on the first anniversary
of their marriage.
2. Nevertheless, the applicant has indicated it is his intent to comply
with the court order to provide the SBP for his former spouse. His current
spouse has given her consent for this change. Therefore, it would be
equitable to correct his records to show that he changed his SBP coverage
to former spouse and child coverage within one year of his divorce.
BOARD VOTE:
__jea___ __dsj___ __rjw___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief. As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he made a written request to change his SBP coverage from spouse
and child coverage to former spouse and child coverage on 1 November 1989
and that his request was received and processed by the appropriate office
in a timely manner.
__James E. Anderholm__
CHAIRPERSON
INDEX
|CASE ID |AR2004103113 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20041021 |
|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. | |
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