RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 July 2004
      DOCKET NUMBER:   AR20040002956


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William d. Powers             |     |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 reconsideration of her earlier requests to
correct the records of her deceased former spouse, a former service member
(FSM), to show he changed his Survivor Benefit Plan (SBP) coverage from
spouse to former spouse.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board amend its previous decision.

2.  Counsel states that the FSM's widow has now provided her consent to
change the FSM's records.  The Court of Federal Claims has remanded this
matter to the Board.

3.  Counsel provides the consent of the FSM's widow and the Court of
Federal Claims order.

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
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR1999023682 on    9 June 1999 and in Docket Number AR2000047745 on 24
April 2001.

2.  The consent of the FSM's widow and the Court of Federal Claims order
are new evidence which will be considered.

3.  The FSM and the applicant married on 20 June 1958.  The FSM retired on
  31 January 1981 after completing over 30 years of active service.

4.  At the time of his retirement, the FSM declined participation in the
SBP but elected spouse and children coverage during the 1982 – 1983 Open
Season Enrollment period.

5.  On 8 August 1986, a separation agreement stated that "the Husband
further agrees to maintain his Wife as the beneficiary of his widow's
pension for so long as she is living."  On 19 February 1988, the FSM and
the applicant divorced.  The separation agreement was incorporated into the
final judgment for divorce.  Statements from the FSM's children provided
with the original consideration of this case indicated it was the FSM's
intent to provide the SBP to the applicant.

6.  The FSM remarried in 1989.  He continued to pay SBP spouse costs until
his death on 12 March 1997.

7.  In the two previous considerations of the applicant's request, the
widow's consent to the SBP change had not been obtained.  On 20 April 2004,
the widow agreed and stipulated that the Board should deem it the intent of
the FSM to have effectively assigned benefits under the SBP to the
applicant as of the date of his death.  She specifically waived entitlement
to SBP benefits effective on the date of the FSM's death and renounced
payment of the SBP annuity in perpetuity in favor of the applicant.

8.  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.  Elections are made by
category, not by name.

9.  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.

10.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

11.  Public Law 98-525, enacted 19 October 1984, provided that a former
spouse could request a deemed election within one year of the court order
requiring SBP to be established on the former spouse’s behalf provided the
member agreed to provide coverage.

12.  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 of
the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  When the FSM and the applicant divorced in February 1988, the court
decree stated "the Husband further agrees to maintain his Wife as the
beneficiary of his widow's pension for so long as she is living."  It is
presumed the "widow's pension" referred to his SBP.  Statements from the
FSM's children provided in the original consideration of this case are
accepted as evidence that the FSM intended the applicant to be his SBP
beneficiary.

2.  Neither the applicant nor the FSM took the steps to change his SBP
coverage from spouse and children coverage to former spouse and children
coverage within the one-year period required by law.  Therefore, at the
FSM's death his widow became the legal beneficiary of the SBP.

3.  However, the widow has now specifically waived entitlement to SBP
benefits effective on the date of the FSM's death and renounced payment of
the SBP annuity in perpetuity in favor of the applicant.  Therefore, it
would be equitable to grant the relief requested by the applicant.  If any
SBP payments have been provided to the widow, such a correction would
require that the Government to collect those payments.

BOARD VOTE:

__kan___  __gjw___  __wdp___  GRANT 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 AR1999023682 dated  9
June 1999 and in Docket Number AR2000047745 dated 24 April 2001.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing the FSM made a written request
to change his SBP coverage from spouse and children to former spouse and
children on 1 March 1988 and that the applicant be paid the SBP annuity
retroactive to the date of the FSM's death.




            __Kathleen A. Newman__
                    CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20040002956                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040708                                |
|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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