RECORD OF PROCEEDINGS


	IN THE CASE OF:    .	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR200070005803 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for former spouse coverage.  The applicant also requests to personally appear before the Board.

2.  The applicant states that when he retired from the United States Army on 
1 August 1993, he had elected SBP coverage for his spouse.  At the time of his divorce on 20 April 2004, he was required by the court to retain this SBP coverage for his former spouse.  Beginning 1 May 2004, he ensured that the SBP cost was deducted from his retired pay.  However, he did not know that he was required to affirmatively elect former spouse coverage after his divorce in order to continue annuity coverage for his ex-wife.  As a result of his remarriage on 25 December 2006, the Defense Finance and Accounting Service (DFAS) automatically terminated his SBP and returned the entire cost of the SBP by check to both he and his former spouse.  The applicant further states that his greatest concern in this matter is to be in compliance with the Divorce Court’s order.  He wants his former spouse to be the beneficiary under his SBP and never intended anything different.      

3.  The applicant provides copies of his divorce decree; retiree account statements; marriage certificate; letter, dated 1 March 2007;and  Defense Finance and Accounting Service (DFAS) letters, dated 23 February 2006 and 
24 March 2007.  

CONSIDERATION OF EVIDENCE:

1.  On 7 June 1961, the applicant was appointed a second lieutenant in the Regular Army.  He remained on active duty through a series of assignments until his retirement for length of service on 1 August 1993.  He had attained the rank of lieutenant general, pay grade O-9, and had completed 32 years, 1 month, and 
24 days of creditable active service. 

2.  On 20 April 2004, the applicant was divorced from his former spouse.  The Divorce Decree, which includes the Separation Agreement dated 15 April 2004, stated, in effect, that the former spouse is entitled to retain SBP benefits until such time as she should remarry, and that the applicant was responsible for the cost of the premiums.

3.  The applicant married his current spouse on 25 December 2006.

4.  The applicant’s Retiree Account Statements for the period from 1 September 2004 to 1 February 2007, show that he was enrolled in the SBP with full coverage for spouse only.  Effective 1 March 2007, his Retiree Account Statement shows that the SBP coverage was discontinued due to no SBP election being reflected on his account.

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.  Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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 requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  

2.  The applicant’s retired pay account shows that he was enrolled in the SBP for spouse only coverage and the premium payments were deducted from his retired pay.  

3.  When the applicant divorced in April 2004, the Divorce Decree required him to continue the SBP coverage for the benefit of his former spouse until such time as she might remarry.  There is no evidence showing that his former spouse made a request for a deemed election. Furthermore, it appears that the applicant did not understand that at the time of his divorce that an affirmative SBP election was required to change his election from spouse only to former spouse.  Hence, when he remarried in 2006, DFAS automatically cancelled all SBP coverage due to his not submitting an SBP election.  

4.  It appears that the applicant intended to comply with the court order to provide his SBP coverage to his first wife and that his not making a former spouse election at the time of his divorce was due to his misunderstanding of the requirement to do so.  Therefore, the applicant’s records should be corrected effective1 May 2004 to show that he elected to participate in the SBP for former spouse coverage at the full base amount.

BOARD VOTE:

__ AMC__  __JCR_ _  __LMD _  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 that effective 1 May 2004, he submitted an SBP election for former spouse coverage at the full base amount.  Furthermore, that DFAS audit the applicant’s retired pay account and, based on this correction, make the necessary monetary adjustments to properly restore his retired pay account, and recover the necessary premiums that were previously refunded.





__     Ann M. Campbell ____
          CHAIRPERSON




INDEX

CASE ID
AR20070005803
SUFFIX

RECON
 
DATE BOARDED
20071002
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
137
2.

3.

4.

5.

6.