RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 June 2004
DOCKET NUMBER: AR2004105580
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. John N. Slone | |Chairperson |
| |Mr. Jose A. Martinez | |Member |
| |Mr. Lawrence Foster | |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).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his records be corrected to show he changed
his Survivor Benefit Plan (SBP) election from spouse [and children]
coverage to former spouse [and children] coverage.
2. The applicant states that he acknowledges he failed to request his SBP
be changed to former spouse coverage within the proper time frame but does
not believe his former spouse should be penalized for his negligence.
3. The applicant provides an undated letter to the Defense Finance and
Accounting Service, his divorce decree, and his DD Form 214 (Certificate of
Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned and entered active duty on 5 June 1972.
He married on 8 February 1975. He initially retired on 1 March 1997. At
that time he enrolled in the SBP for spouse and children coverage, full
base amount.
2. The applicant divorced on 18 September 2000. An accompanying Property
Settlement Agreement provided that his spouse would be entitled to
"survivor benefits" so long as she paid any costs associated with providing
the benefits.
3. On 15 June 2004, the applicant stated that he has not remarried.
4. The Army Board for Correction of Military Records, on 15 June 2004
(docket number AR2004107125), corrected the applicant's retirement date to
1 July 2002.
5. 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.
6. 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.
7. Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).
8. 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant had originally elected to participate in the SBP for
spouse and children coverage. When he divorced in September 2000, the
accompanying Property Settlement Agreement provided that his spouse would
be entitled to survivor benefits so long as she paid any costs associated
with providing the benefits. It is presumed the term "survivor benefits"
refers to the SBP.
2. The applicant acknowledged that he failed to take action within one
year of the divorce to change his spouse and children coverage to former
spouse and children coverage. However, it is his intent to abide by the
provisions of the Property Settlement Agreement. He has not remarried.
3. Since the applicant's date of retirement has been changed by Board
action to 1 July 2002, it would be equitable to show that on 1 June 2002 he
elected to participate in the SBP for former spouse and children coverage,
full base amount. Any SBP premiums paid by the applicant prior to 1 July
2002 should be refunded to him so he may reimburse his former spouse.
BOARD VOTE:
__jns___ __jam___ __lf____ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file. As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing he elected, on 1 June 2002, to
participate in
the SBP for former spouse and children coverage, full base amount. Any SBP
premiums paid by the applicant prior to 1 July 2002 should be refunded to
him so he may reimburse his former spouse.
__John N. Slone_______
CHAIRPERSON
INDEX
|CASE ID |AR2004105580 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20040622 |
|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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