RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            12 May2005
      DOCKET NUMBER:   AR20040007193


      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. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 a determination be made that
his former spouse is not entitled to the Survivor Benefit Plan (SBP).

2.  The applicant states that, during their divorce mediation, he and his
former spouse agreed that the SBP would be retained by him and not for her
and the final divorce decree was changed to reflect that decision.  He was
incorrectly under the impression that once he started SBP he could never
stop the program. If he had known he could stop the SBP when he divorced he
would have stricken the entire sentence.  The supporting documents clearly
show that he retains control and all rights to the SBP.  Therefore, he
cannot get an amended decree because no fraud has taken place.

3.  The applicant provides a 21 June 2004 letter from the Defense Finance
   and Accounting Service (DFAS); a 4 February 2003 letter from him
apparently    to DFAS; a 3 February 2004 letter from his attorney
apparently to DFAS; a        20 September 2002 letter from his attorney to
the attorney of his former spouse with draft wording for the divorce
decree; a 25 September 2002 letter from his attorney to the mediator; and a
26 September 2002 letter from the attorney for his former spouse to his
attorney with a draft divorce decree.

4.  The applicant also provides a 1 November 2002 letter from his attorney
to the attorney of his former spouse with a draft divorce decree; a 6
November 2002 letter from the attorney of his former spouse to his attorney
with a draft divorce decree; a 19 November 2002 letter from his attorney to
the attorney of his former spouse with a marked-up version of the previous
draft divorce decree; and the final divorce decree.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement for the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant and his former spouse married on 10 August 1972.  After
having had prior inactive service, he was commissioned and entered active
duty on 15 September 1974.  He retired on 1 October 1994.  His DA Form 4240
(Data for Retired Army Personnel) is not available; however, records at
DFAS show he elected to participate in the SBP for spouse coverage at that
time.

2.  The applicant and his former spouse separated on 20 June 2001.

3.  In a letter dated 20 September 2002 to the attorney of the applicant's
former spouse, the applicant's attorney requested changes to a proposed
divorce decree.  In pertinent part, he requested paragraph 10b be worded,
"Survivor Benefit Plan (SBP) coverage – Defendant will terminate current
SBP coverage as of the date of divorce decree.  Plaintiff may initiate SBP
coverage on her own behalf ("deemed election") in accordance with the
Uniformed Services Former
Spouses' Protection Act (USFSPA)."

4.  A meeting was held with the mediator on 25 September 2002.  The
attorney for the applicant's spouse provided a draft divorce decree for
review.  The draft decree stated in paragraph 10, "Pursuant to the Retired
Serviceman's Family Protection Plan, the Defendant shall continue to
maintain the Survivor Benefit Plan Annuity, for the Plaintiff, at the
maximum spouse/former spouse coverage, which is currently in place as
spouse only (emphasis in the original) coverage.  The Defendant shall
provide beneficiary information of the Plaintiff/former Spouse to the
Defense Finance and Accounting Service immediately and shall provide
Plaintiff with a beneficiary card."

5.  By letter dated 1 November 2002, the applicant's attorney informed his
former spouse's attorney that the draft divorce decree was changed to
reflect the applicant's understanding of the agreement reached at
mediation.  He stated, "A significant portion of the changes are based upon
his understanding of the military retirement system and what he can and
can't agree to accept in the form of a Court Order.  In other words, he can
not agree to an Order committing him to obligations that are provided by
the military because they have the potential to withdraw or change their
programs."  Paragraph 10 of the draft divorce decree was thereupon amended
to delete all of it except for the first phrase, "Pursuant to the Retired
Serviceman's Family Protection Plan, the Defendant shall continue to
maintain the Survivor Benefit Plan Annuity."

6.  By letter dated 6 November 2002, the attorney for the applicant's
former spouse informed his attorney that the divorce decree with the
changes he requested was provided.  Paragraph 10 of the draft divorce
decree had been changed to read, "Pursuant to the Retired Serviceman's
Family Protection Plan, the Defendant shall continue to maintain the
Survivor Benefit Plan Annuity, for the Plaintiff."

7.  By letter dated 19 November 2002, the applicant's attorney provided a
signed divorce decree.  He and the applicant had made a pen and ink change
to paragraph 10 to delete the last phrase, "for the Plaintiff.

8.  The divorce decree was signed by the court on 13 December 2002.
Paragraph 10 stated, "Pursuant to the Retired Serviceman's Family
Protection Plan, the Defendant shall continue to maintain the Survivor
Benefit Plan Annuity."

9.  On 16 September 2003, the applicant's former spouse made a request for
a deemed SBP election.

10.  On 3 February 2004, the applicant's attorney informed DFAS that, on
     25 September 2002, the applicant and his former spouse attended a
mediation in the matter of their divorce.  At the mediation, he recalled
the applicant stating that he did not agree with the former spouse being
covered by the SBP.  It was his understanding that the applicant had been
advised by a "representative of the pension plan" that the [final] change
to the divorce decree would eliminate his obligation to his former spouse
and further that the rules prohibited him from deleting the SBP altogether
once it had been put in place.  The purpose of the final deletion had been
to once again restate the applicant's position that he would not agree to
maintain the SBP for his former spouse.

11.  In February or March 2004, the applicant informed DFAS that, during
mediation, his former spouse and he had agreed that the SBP would be
retained by himself and not for her use and the proposed divorce decree was
changed to reflect that decision.

12.  By letter dated 21 June 2004, DFAS informed the applicant's Senator
that     a review of the initial copy of the divorce decree stated that the
applicant would continue the SBP annuity for the applicant with maximum
coverage.  DFAS received a request for a deemed election from his former
spouse on                  16 September 2003 and it was a valid election.

13.  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, and are normally irrevocable except as
provided by law.

14.  Public Law 94-496, enacted 14 October 1976 but effective 1 October
1976, provided for the suspension of spouse coverage if marriage ends in
death or divorce.  This law is codified in Title 10, U. S. Code, section
1452(a)(3):  The reduction in retired pay prescribed by paragraph (1) shall
not be applicable during any month in which there is no eligible spouse or
former spouse beneficiary.

15.  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.

16.  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.

17.  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.  The applicant states that, during their divorce mediation, he and his
former spouse agreed that the SBP would be retained by him and not for her,
the final divorce decree was changed to reflect that decision, and the
supporting documents clearly show he retains control and all rights to the
SBP.

2.  However, that is not clear to the Board.  The 20 September 2002 letter
from the applicant's attorney requested that paragraph 10b be worded,
"Survivor Benefit Plan (SBP) coverage – Defendant will terminate current
SBP coverage as of the date of divorce decree.  Plaintiff may initiate SBP
coverage on her own behalf ("deemed election")…"  His 25 September 2002
letter, immediately after mediation, did not mention the SBP at all.

3.  The attorney for the applicant's 1 November 2002 letter included a
draft decree of divorce which included "the changes required by (the
applicant) to reflect his understanding of the agreement reached at
mediation."  However, the letter then went on to state that the applicant
could "not agree to an Order committing him to obligations that are
provided by the military because they have the potential to withdraw or
change their programs."  He did not state that the applicant could not
agree to the changes because he understood his former spouse would not get
SBP coverage.
4.  The wording of paragraph 10 of the final decree of divorce is certainly
confusing by itself.  Why would the applicant maintain the SBP unless it
was for a beneficiary?  He surely would not maintain it for himself; it is
a survivor's benefit program.  Because of the preceding questions, when the
final document is read it appears reasonable that DFAS would have concluded
that the wording of paragraph 10 meant that the former spouse was to be the
SBP beneficiary.

5.  The applicant was under the correct impression that once he started SBP
he could never stop the program.  However, since elections are made by
category, his attorney should have been able to tell him that, in
accordance with Title 10,  U. S. Code, section 1452(a)(2), once he lost his
spouse beneficiary no deductions would have been taken from his retired
pay.

6.  Unless the applicant can prove fraud on the part of his former spouse,
she is now the lawful beneficiary of his SBP.  Absent a notarized statement
from her acknowledging that the agreement in mediation was that she not
become the SBP beneficiary and agreeing to renounce her right to the SBP
annuity, the Board concludes that her deemed election was valid and that a
records correction as requested by the applicant is not warranted.

7.  In the alternative, if the applicant believes the wording of paragraph
10 in the final decree of divorce misrepresents the SBP agreement made in
mediation, he should obtain a clarification of paragraph 10 from the court.
 His former spouse must be a party to that court action.  If the court
finds that the intent behind the mediation agreement was to not award his
former spouse the SBP, he may reapply to this Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __lds___  __mjf___  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.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007193                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050512                                |
|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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