IN THE CASE OF:	  

		BOARD DATE:	  	  16 December 2009

		DOCKET NUMBER:  AR20080016000 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request for correction of his records pertaining to the Survivor Benefit Plan (SBP) former spouse coverage because the original request did not address the base amount.

2.  That applicant states, in effect, he has been advised by the Defense Finance and Accounting Service (DFAS) that the instructions contained in the Army Board for Correction of Military Records (ABCMR), Docket Number AR20070012863, dated 8 April 2008, cannot and will not accomplish the action he requested and intended.

	a.  The applicant states that the documentation submitted with his original application included specific reference to the monthly annuity amount owed to his former spouse as an appropriate division of property upon his retirement from the U.S. Army.  However, the ABCMR decision resulted in correction of his records to show that he elected SBP former spouse coverage based on the full amount of his retired pay.

	b.  The applicant states he has been in contact with Mr. Tim F_______, the DFAS official who has responsibility to prepare the final changes to his Retired Pay Account based on the Board’s instructions.  He also states Mr. F_______ provided suggested language in order to meet the applicant’s obligation to his former spouse as directed by the court order which provided her with an annuity of $1,237.00 at the time of the applicant’s retirement should the applicant predecease her.  The applicant states the base amount which DFAS must be instructed to use to accurately finalize his SBP former spouse coverage should be based on the formula:  $1,237.00/0.55, which equates to a base amount of $2,249.00.

	c.  The applicant states that his full retired pay at the time of his retirement was $3,823.00 per month, and $2,249.00 was the base amount he would have been required to elect as the base amount for his former spouse’s SBP coverage had he been allowed to elect SBP at the time of his retirement as the ABCMR decision granting correction of his records recently allowed and should have directed.

	d.  The applicant adds that the monthly premium for $2,249.00 at 6.5 percent would have been the $146.19, as indicated in the Qualified Domestic Relations Order (QDRO), dated 28 June 1995.  He also states an elected base amount for SBP purposes can be anything from $300.00 to the full retired pay amount and the monthly annuity provided to the surviving beneficiary is then calculated at 55 percent of that base amount.

	e.  The applicant states the DFAS official indicated, by Federal Regulations, his office cannot calculate the base amount according to the dictates of the QDRO because this is now being done as a correction to his records rather than an original action at the time of his retirement.  Thus, the ABCMR must provide DFAS with the base amount number, otherwise the DFAS must use his full retired pay as the base amount, which would be significantly more than the Court intended.  The applicant adds that the incorrectly applied base amount (from the original ABCMR decision) has resulted in his debt to the government amounting to tens of thousands of dollars more than it should be.

	f.  The applicant concludes by stating he respectfully requests the ABCMR direct that DFAS correct his records to show he elected SBP former spouse coverage at the time of his retirement with a base amount of $2,249.00.  This would have provided his former spouse an SBP annuity of $1,237.00 at the time of his retirement, which the QDRO stipulated and would also result in the amount being carried forward with appropriate cost of living allowance (COLA) increases.

3.  The applicant provides three self-authored statements, dated 7 August 2008, 8 August 2008, and 12 August 2008; Edwin C. S_______, III, Attorney at Law, Aurora, Colorado, letter, dated 29 May 2007, with a 4-page document and two Basic Pay Tables, effective 1 January 1992 and 1 January 1994; and Retiree Account Statement, as of 2 September 2008.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070012863 on 8 April 2008.

2.  The applicant’s military service records show that he entered active duty on 5 June 1968, retired from active duty in the grade of colonel (COL)/pay grade 
O-6 on 30 June 1994, and was placed on the Retired List effective 1 July 1994.

3.  Records show that the applicant divorced on 23 October 1992 prior to his retirement.  The divorce decree contained specific language regarding the SBP and stated, "at the time of his retirement, [the applicant] agrees to apply for Survivor Benefits Claim naming [former spouse] as beneficiary with any required premium deductions to be paid entirely from wife's portion of the retirement benefits as sole beneficiary of said retirement benefits plan."  The applicant's Property Settlement Agreement, dated 28 August 1992, contained the same language.

4.  On 28 June 1995, the applicant’s former spouse obtained an amended QDRO which deleted the language from the 1992 divorce decree regarding deduction of premiums from the wife's portion of the retirement.

	a.  Paragraph 1 of the QDRO provides the formula (which was also contained in the 23 October 1992 Order) to calculate the former spouse’s interest in the applicant’s military retired pay and shows that the amount of the former spouse’s interest in the applicant’s military retired pay is $1,237.00.

	b.  Paragraph 2 of the QDRO, in pertinent part, shows the cost of the SBP to provide an annuity of $1,237.00 per month is approximately $146.19 per month.

5.  In support of his request for reconsideration, the applicant provides the following documents:

	a.  Three self-authored statements, dated 7 August 2008, 8 August 2008, and 12 August 2008, which were summarized as the applicant’s request and statement above.

	b.  Edwin C. S_______, III, Attorney at Law, Aurora, Colorado, letter, dated 29 May 2007 with a 4-page document (undated) and two Basic Pay Tables, effective 1 January 1992 and 1 January 1994, that serve to offer information and an explanation as to the proper division of the applicant’s Army retired pay, including the SBP annuity and calculation of the premium for former spouse coverage.

	c.  Retiree Account Statement, as of 2 September 2008, that shows the applicant’s retiree pay account has been corrected to implement SBP former spouse coverage and an annuity base amount of $5,431.55, an SBP monthly premium of $353.05, and an annuity payable at 55 percent of the applicant’s base amount, which would be $2,987.35.  This document also shows, in pertinent part, an SBP debt balance of $49,774.58.

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

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.

8.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement 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 Uniformed Services Former Spouses Protection Act relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  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.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding 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 1 year of the date of the court order or filing involved.

10.  The SBP Booklet, Survivor Benefit Plan for the Uniformed Services - The Simple Facts, available on the Deputy Chief of Staff, Army G-1, website at:  
http://www.armyg1.army.mil/RSO/sbp.asp, in pertinent part, states that the SBP base amount is tied to the retiree's retired pay.  When retired pay gets a Cost-of-Living Adjustment, or COLA, so does the SBP base amount and as a result, so do premiums and benefits.
DISCUSSION AND CONCLUSIONS:

1.  That applicant contends, in effect, that the instructions contained in the ABCMR Docket Number AR20070012863, dated 8 April 2008, cannot and will not accomplish the action he requested and intended because it resulted in correction of his records to show that he elected SBP former spouse coverage based on the full amount of his retired pay.  However, the correction should have directed SBP former spouse coverage with a base amount of $2,249.00.

2.  The evidence of record shows the applicant’s former spouse’s interest was 37.88 percent of the applicant’s military retired pay and amounted to $1,237.00 of the applicant’s retired pay at the time of the ADRO.  The evidence of record also shows that the cost of the SBP to provide the applicant’s former spouse an annuity of $1,237.00 per month was $146.19 per month at that time.

3.  The evidence of record shows that the SBP annuity is determined based upon the SBP base amount elected by the sponsor at the time of retirement.  In this case, the evidence of record shows that in order to ensure his former spouse received an SBP annuity of $1,237.00 per month, the SBP base amount the applicant would have had to elect at the time of his retirement was $2,249.00.

4.  The evidence of record shows that the SBP base amount, premium, and annuity are increased based on authorized COLAs.

5.  The evidence of record shows that by Federal regulations, the DFAS does not have authority to retroactively adjust the applicant’s SBP annuity base amount without specific direction from a Board for Correction of Military Records. Therefore, in view of all of the foregoing, it would be appropriate and equitable to correct the applicant's records to show that he elected SBP coverage for former spouse with a base amount of $2,249.00 when he was placed on the Retired List, effective 1 July 1994.

BOARD VOTE:

____X____  ____X____  ____X____  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 amendment of the ABCMR’s decision in Docket Number AR20070012863, dated 8 April 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected SBP former spouse coverage with a base amount of $2,249.00, effective 1 July 1994, with adjustment for all authorized COLA since that date.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016000



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016000



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1