RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR20040002035


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 the records of her deceased former spouse,
a former service member (FSM), be corrected to show he changed his Survivor
Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states that she and the FSM had a friendly divorce.  The
divorce decree stated she was to remain the SBP beneficiary.  She found
papers showing the FSM attempted to correct his records but it is unclear
if he ever submitted the papers.

3.  The applicant provides 4 pages of their divorce decree; an undated DD
Form 149 (Application for Correction of Military Record under the
Provisions of Title 10, U. S. Code, Section 1552) signed by the FSM; an
Election Statement for Former Spouse Coverage dated 23 May 2004 and signed
by the applicant; and a Certificate of Appointment from the State of South
Carolina, County of Richland Probate Court.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 22 September 1973.  The FSM
entered active duty on 7 September 1974 and retired on 1 October 1994.  At
that time, he elected to participate in the SBP for spouse and children
coverage, full base amount.

2.  The FSM and the applicant divorced around January 1997.  The divorce
decree stated in pertinent part that the FSM would maintain the applicant
and their children as beneficiaries on his SBP.

3.  The FSM died on 13 March 2004.  The death certificate indicates the FSM
was divorced.

4.  On 29 December 2004, the Defense Finance and Accounting Service
informed the Board analyst that the FSM died with children-only SBP
coverage in effect and that no one is getting the annuity.

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.  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
after the date of the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  When the FSM and the applicant divorced in January 1997, the divorce
decree stated that the FSM would maintain the applicant and their children
as beneficiaries on his SBP.  The FSM failed to make a written request to
change his SBP coverage to former spouse and children coverage within one
year of the divorce and the applicant failed to make a request for a deemed
election within one year of the divorce as required by law.

2.  There is some evidence the FSM attempted to correct his records in
order to abide by the divorce decree prior to his death.  The available
evidence shows that he did not remarry and no one is currently receiving
the SBP annuity.  Therefore, it would be equitable to show that the FSM did
in fact change his SBP coverage to former spouse and children coverage.

3.  Since it appears the FSM did not pay spouse or former spouse premiums
at the time of his death, any back due premiums would have to be paid
(taken out of back due annuity monies).

BOARD VOTE:

__lds___  __jtm___  __cak___  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:

     a.  showing that he made a written request to change his spouse and
children SBP coverage to former spouse and children coverage on 1 February
1997 and that his request was received and processed by the appropriate
office in a timely manner;

     b.  paying to the applicant the SBP annuity retroactive to the date of
the FSM's death; and

     c.  advising the applicant that the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.




            __Linda D. Simmons____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002035                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|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.                      |                                        |


-----------------------
[pic]