RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:  AR20040005777


      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, in effect, 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 the FSM agreed to leave her as his SBP
beneficiary in lieu of alimony (after 35 years of marriage).  She agreed as
she knew she would need the money more in later life.  He continued to have
the premiums taken out of his retirement check until his death.  Her
present husband is on disability and they do not have very much money.

3.  The applicant provides the divorce decree and Marital Settlement
Agreement, the FSM's death certificate; the FSM's retiree account
statements effective April 1993 and 13 December 1999; a W-4P form
(Withholding Certificate for Pension or Annuity Payments); a direct deposit
form; and a DD Form 2656-7 (Verification for Survivor Annuity).

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 4 August 1948.  He and the
applicant (date of birth 8 March 1937) married on 2 October 1964.  He
retired on 1 September 1968.

2.  Records at the Defense Finance and Accounting Service – Cleveland
Center (DFAS-CL) show the FSM enrolled in the SBP in 1993 for spouse
coverage.

3.  The FSM and the applicant divorced on 2 April 1998.  The Marital
Settlement Agreement stated, in pertinent part, that he would maintain the
SBP for the applicant.

4.  The FSM died on 12 December 2003.  The death certificate shows his
marital status as divorced.  Records at DFAS-CL show he continued to pay
SBP premiums until his death and that no one is currently receiving the SBP
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.  To retain annuity
eligibility, a surviving spouse cannot remarry before age 55.

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.  Public Law 98-94, dated 24 September 1983,
established former spouse coverage for retired members.

7.  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.

8.  Public Law 101-189, enacted 29 November 1989, established an Open
Season to be conducted 1 October 1991 through 30 September 1992.  Public
Law 101-510, enacted 5 November 1990, delayed the start of the Open Season
to 1 April 1992 through 31 March 1993.

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 April 1998, their Marital
Settlement Agreement stated that the applicant would be maintained as his
SBP beneficiary.

2.  Although it appears neither the FSM nor the applicant took the required
actions outlined by law to change his SBP coverage from spouse to former
spouse, it appears it was the FSM's intent to provide the SBP for the
applicant.  He continued to pay SBP premiums until he died and the
available evidence shows he never remarried.  Therefore, it would be
equitable to show that he requested that his SBP coverage be changed to
former spouse within the time limit established by law.

BOARD VOTE:

__mhm___  __phm__  __sap___  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 the FSM made a written request to change his SBP
coverage from spouse to former spouse on 1 May 1998 and that his request
was received and processed by the appropriate office in a timely manner;
and

     b.  paying to the applicant the SBP annuity retroactive to the FSM's
death.




            ___Melvin H. Meyer____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005777                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|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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