RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 March 2005
      DOCKET NUMBER:  AR20040001873


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. Antonio Uribe                 |     |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, in effect, reinstatement of “Former Spouse”
Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that he and his former spouse divorced
on
15 September 2000 and that the court divorce decree stipulated that his
former spouse would receive 44 percent of his retired pay and continued SBP
coverage as a former spouse.  He claims the court also directed his former
spouse’s lawyer to prepare and process a Domestic Relations Order (DRO)
that required the Defense Finance and Accounting Service (DFAS) to pay his
former spouse her share of the retired pay directly to her.  He further
states that it was his understanding that a request for a deemed election
would also be submitted with the DRO.

3.  The applicant further states that his lawyer worked with his former
spouse’s lawyer and agreed on the terms of the DRO.  However, unknown to
him, the DRO was never implemented.  He claims that since 15 September
2000, he has continued to make monthly payments to his former spouse in the
amounts directed by the court and has continued to pay SBP premiums until
they were stopped by DFAS on 1 November 2003.  He states that he has
inquired into the situation many times, but has never gotten an acceptable
answer.  He claims that he recently contacted his lawyer to obtain
information on the failure to implement the DRO and found out his former
spouse’s lawyer had been suspended from practicing law for one year, which
may account for the failure of the DRO to be processed through completion.


4.  The applicant now requests the Board reinstate former spouse SBP
coverage even though the one year filing time after the divorce has
elapsed.  He states that his request is based on the fact that he did not
know he had the option to make the SBP election within the one year himself
and he is confident his former spouse was unaware of the one year filing
period for a deemed elected.  He further indicates that he has provided
DFAS with all the necessary divorce documents and understands that if the
Board recommends approval of this request as an exception to policy, he
will have to pay DFAS all unpaid SBP premiums.

5.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Divorce Decree and DRO.
CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was released from active duty for the
purpose of length of service retirement on 31 January 1998.  At the time,
he held the rank of colonel and he had completed 27 years, 7 months and 28
days of active military service.

2.  On 26 May 1973, the applicant and his former spouse were married and on
15 September 2000, they were divorced.  The Divorce Decree issued by the
District Court of Leavenworth County, Kansas, Family Court Department,
contained a property settlement agreement.  In this agreement, the parties
agreed that the former spouse would receive 44 percent of the applicant’s
gross monthly retired pay and continue to be covered under the SBP as a
former spouse.

3.  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.  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.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The law
also permits the former spouse concerned to request a former spouse SBP
coverage election be deemed to have been made within one year of a date of
a court-order of divorce.

2.  The evidence of record confirms the applicant and his former spouse
were divorced on 15 September 2000.  The divorce decree directed that both
parties comply with the terms of a settlement agreement, which included
continued SBP coverage for the applicant’s former spouse.
3.  Further, the applicant confirms that he and his former spouse
understood a deemed election would be made as part of a DRO that was to be
prepared and submitted by his former spouse’s lawyer.  He further verifies
that SBP premiums continued to be taken from his retired pay through 1
November 2003, when he notified DFAS of the issue.  It is clear the
applicant’s intent was to provide continued SBP coverage for his former
spouse, as evidenced by the settlement agreement contained in the divorce
decree.  It further appears he believed the divorce notification and former
spouse SBP deemed election requirements were being met by the DRO to be
submitted by his former spouse’s lawyer.

4.  In view of the facts of this case, given the 27 year marriage of the
applicant and his former spouse and the applicant’s clear intent to provide
his former spouse continued SBP coverage, it would serve the interest of
justice, compassion and equity to grant the requested relief.

BOARD VOTE:

___AU __  ___WTM_  ___RLD _  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 changed his Survivor Benefit Plan election from
“Spouse” to “Former Spouse” on 16 September 2000.

2.  That the Defense Finance and Accounting Service collect any Survivor
Benefit Plan premiums due as a result this correction.




            ____Walter T. Morrison __
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001873                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/01/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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