RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 January 2005
      DOCKET NUMBER:  AR20040000533


      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          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 Reserve
Component Survivor Benefit Plan (RCSBP) coverage to former spouse coverage.

2.  The applicant states the FSM did not know he had to make a change to
his RCSBP.  Neither one of them ever remarried.  He always thought
everything would be OK for her to get part of his retirement.

3.  The applicant provides the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 13 October 1935.  He and the applicant married on
 30 June 1960.  After having had prior service, he enlisted in the Army
National Guard on 26 May 1976.

2.  The FSM's notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated 6 June 1986.  At that time, he completed a DD Form
1883 (Survivor Benefit Plan Election Certificate) electing to participate
in the RCSBP for spouse and children coverage, full base amount, option C.

3.  The FSM and the applicant divorced on 28 December 1998.  The divorce
decree does not mention the SBP.

4.  The FSM died on 9 March 2004.  The death certificate shows his marital
status as divorced.

5.  On 4 January 2005, the Defense Finance and Accounting Service informed
the Board analyst that the FSM continued to pay spouse SBP costs until he
died and no one is currently receiving the annuity.

6.  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.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way
for those who had qualified for reserve retirement but were not yet age 60
to provide an annuity for their survivors should they die before reaching
age 60.  Three options are available:  (A)  elect to decline enrollment and
choose at age 60 whether to start SBP participation; (B)  elect that a
beneficiary receive an annuity if they die before age 60 but delay payment
of it until the date of the member’s 60th birthday; (C)  elect that a
beneficiary receive an annuity immediately upon their death if before age
60.

8.  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.

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

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the divorce decree does not mention the SBP, the FSM could
have voluntarily requested that his SBP coverage be changed to former
spouse and child coverage.  Although there is no evidence to show that he
did so, and the applicant indicates that he did not know he had to do so,
he continued to pay SBP spouse costs until he died.  It is presumed the FSM
intended the applicant to remain his SBP beneficiary.

2.  Since the available evidence shows the FSM did not remarry and no one
is currently receiving the SBP annuity, as a matter of equity the applicant
should be granted the SBP annuity.  It was Congress’s intent in
establishing the SBP to provide for those spouses who supported the
military member for the majority of his or her military career.  The
applicant was married to the FSM for the majority of his military career.

BOARD VOTE:

__jea___  __kan___  __lmd___  GRANT FULL 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 that he voluntarily requested to change his SBP
coverage from spouse and children coverage to former spouse and children
coverage on 1 January 1999 and that his request was received and processed
by the appropriate office in a timely manner.

2.  That the applicant be paid the SBP annuity retroactive to the date of
the FSM's death.




            ___James E. Anderholm_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000533                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|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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