RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 March 2005
      DOCKET NUMBER:   AR20040005504


      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:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 either 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 from spouse and children coverage to
former spouse and children coverage or that his children be determined to
be eligible beneficiaries for the SBP.

2.  The applicant states that she was never informed that she had to
contact the Army within one year of their divorce.  She and the FSM left on
great terms.  She did not take any of his pay from him and they remained
best friends.  He gave her the SBP election sheet so that his only two
children would always be taken care of.

3.  The applicant provides the reverse of a DA Form 4240 (Data for Payment
of Army Retired Personnel); the divorce decree; the FSM's death
certificate; the birth certificates of the FSM's children; their marriage
certificate; a DA Form  3713 (Data for Retired Pay); and the FSM's DD Form
214 (Certificate of Release or Discharge from Active Duty) for the period
ending 31 January 1993.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 18 August 1969.  The FSM enlisted
in the Regular Army on 11 January 1973.

2.  The FSM retired on 1 February 1993.  At that time, he elected to enroll
in    the SBP for spouse and children coverage (children born on 6 May 1971
and    28 February 1973).

3.  The FSM and the applicant divorced on 20 August 1993.  The applicant
provides one page of a Judgment of Absolute Divorce.  The document does not
mention the SBP.

4.  Records at the Defense Finance and Accounting Service – Cleveland
Center (DFAS-CL) show that the FSM remarried in August 2000.

5.  The FSM died on 19 November 2002.  Records at DFAS show his widow is
receiving the SBP 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.  Elections are made by
category, not by name.
7.  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.  Public Law 98-94, dated 24 September 1983,
established former spouse coverage for retired members.

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.

10.  Title 10, U. S. Code, section 1447(11) defines “dependent child” as a
person who is unmarried; is under 18 years of age or at least 18 but under
22 years of age and pursuing a full-time course of study in a high school,
college, or comparable recognized educational institution or is incapable
of self-support because of a mental or physical incapacity existing before
the person’s 18th birthday.

11.  Title 10, U. S. Code, section 1450(a) states that the SBP annuity
shall be paid to the eligible surviving spouse or former spouse or to the
surviving dependent children in equal shares if there is no eligible
surviving spouse or former spouse.

DISCUSSION AND CONCLUSIONS:

1.  When the FSM retired, he enrolled in the SBP for spouse and children
coverage.

2.  The divorce decree provided by the applicant does not mention the SBP.
It cannot be determined if there might have been a related document (such
as a marital settlement agreement) that ordered her to be maintained as the
SBP beneficiary.  In the absence of such a document, it appears the
applicant lost her SBP eligibility when her status changed from spouse to
former spouse upon their divorce.  If there is such a document, there is
still no evidence that either the FSM made a written request to change his
SBP coverage or that the applicant made a request for a deemed election
within the one-year time limit prescribed by law.

3.  The FSM's widow became the lawful beneficiary of the FSM’s SBP upon the
first anniversary of their marriage and is currently drawing the SBP
annuity.  Even if there is a court document awarding the applicant the SBP,
absent a statement from the FSM’s widow asserting that she agrees to
renounce payment of the SBP annuity in perpetuity in favor of the applicant
the Board will not take any action to prevent the lawful beneficiary from
receiving those benefits.  To do so would constitute an unconstitutional
taking without due process of law.

4.  The FSM's SBP children coverage did not change when he and the
applicant divorced.  However, it is noted that their children were 31 and
29 years old at the time of the FSM's death.  There is no indication that
either of them still fit the statutory definition of "dependent" children.
If they do, the applicant should provide such evidence (normally medical
evidence) to DFAS-CL.

5.  However, the SBP annuity is paid to the surviving spouse before it is
paid to any eligible children.  As long as the FSM's widow is receiving the
annuity, any eligible children would not be eligible to receive the SBP
annuity.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __phm___  __sap___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case
are insufficient as a basis for correction of the records of the individual
concerned.




            __Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005504                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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