RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:   AR20040009446


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |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 the Survivor Benefit Plan (SBP)
election made by her deceased ex-spouse, a former service member (FSM), be
changed to former spouse coverage.

2.  The applicant states, in effect, that at the time of the FSM’s death
his SBP election was his current spouse; however, her divorce decree
granted her entitlement to SBP and forbade any subsequent changes.

3.  The applicant provides in support of her application a letter dated
29 September 2004, a copy of the FSM’s original SBP Election Certificate
dated 14 July 1972, their property settlement, their separation agreement,
their divorce decree, and an amended order to the property settlement
agreement.

CONSIDERATION OF EVIDENCE:

1.  On 30 November 1969, the FSM was released from active duty for the
purpose of retirement after completing 20 years and 19 days of active
military service.  At the time, he held the rank and pay grade of Chief
Warrant Officer Two/CW2 and he was placed on the Retired List in that rank
and pay grade on
1 December 1969.

2.  On 14 July 1972, the FSM completed a Survivor Benefit Plan Election
Certificate – By Existing Retiree (USAFSA Form 2621 - Test).  In Section II
(SBP Election) of this form, he elected spouse only coverage in the amount
of $300.00.

3.  The applicant and FSM were married on 28 September 1957 and divorced on
8 March 1985.  The property settlement agreement stipulated that the FSM’s
election to provide SBP benefits to the applicant should be continued in
full force and effect and that he would continue to designate the applicant
as irrevocable beneficiary to the property settlement agreement.  The
divorce decree also provided an enforcement clause which provided for
damages (subject to the presiding judge’s decision) if one party had to sue
the other party for breeching the terms of the divorce decree.  The
property settlement agreement (referred to by the court as a separation
agreement) was amended by the court on 26 September 1991, as a result of
the applicant filing a claim that the FSM had failed to abide by the terms
of the separation agreement by not paying spousal support.  The court
ordered the FSM to initiate a direct allotment through the Army Finance
Center in Indianapolis, Indiana, to the applicant.

4.  In the processing of this case, a staff advisory opinion was obtained
from the Human Resources Command – St. Louis, Missouri, Transitions and
Separations Branch, which opines that the applicable law did not authorize
the FSM’s enrollment of his second wife as his SBP beneficiary because the
court had ordered the applicant to be the designated annuitant.  Officials
at that office opined that the FSM’s SBP coverage should be changed to
reflect the applicant as the designated annuitant.  The advisory opinion
was provided to the applicant for comment and she concurred with the
opinion as written.

5.  The available records fail to show that either the FSM or the applicant
took any action to request a change to the FSM’s SBP election to former
spouse coverage within a year of the divorce decree being issued, as is
required by law.

6.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), dated 8 September 1982, established SBP for former military
spouses.

7.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of
the USFSPA relating to the SBP.  It permits a person, incident to a
proceeding of divorce, if required by court order to elect to provide an
annuity to a former spouse to make such an election.  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.  The evidence shows that an injustice has occurred in this case.
However, no Board corrective action will be taken because that action would
cause another injustice by depriving the FSM’s widow of property interest
without due process.

2.  The evidence of record confirms that the SBP election in force at the
time of the FSM’s death was spouse coverage, and based on this election,
his wife at the time of his death is now receiving the SBP benefit.

3.  The record shows that the FSM failed to make a former spouse coverage
SBP election as was ordered by the applicant’s property settlement
agreement.  As a result, the law allowed the applicant one year from the
date of divorce to submit a written request that a former spouse coverage
election be deemed to have been made.  However, there is no evidence to
show the applicant ever submitted such a request within the time
prescribed, although she should have known that the FSM had not taken steps
to comply with the court’s order.

4.  Even though there is no evidence of government administrative error, in
view of the circumstances of the applicant’s case the Board ordinarily
would consider granting her relief.  However, the lawful beneficiary of the
FSM’s SBP is currently drawing the SBP annuity.  Absent a statement from
the FSM’s second spouse asserting that she agrees to renounce payment of
the SBP annuity in perpetuity in favor of the applicant, and
notwithstanding the advisory opinion, 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.
Accordingly, there is no basis for granting the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__js____  __dj____  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice that may be corrected by this Board.  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.




                 John Slone
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009446                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |350/chg election                        |
|1.137.0400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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