RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040009530


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael 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 of her deceased former spouse, a former service member (FSM), be
changed to show former spouse coverage.

2.  The applicant states that the divorce was finalized on 21 September
2000.  In accordance with the divorce decree, the FSM was supposed to
change the SBP election from spouse coverage to former spouse coverage.

3.  The applicant provides a copy of the divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 9 November 1937.  He and the applicant were married
on 24 December 1985.

2.  After having had prior service in the U.S. Navy, the U.S. Navy Reserve
and the Army National Guard, the applicant enlisted in the Army National
Guard on 21 February 1989.

3.  The FSM's notification of eligibility to receive retired pay at age 60
(20-Year Letter) is dated 20 July 1989.  On 10 September 1989, he completed
a DD Form 1883 (SBP Election Certificate) and enrolled in the Reserve
Component SBP (RCSBP).  He indicated that he was married and did not have
dependent children.  However, he did not indicate the type of coverage he
desired.  He did elect full base amount, option C.

4.  The FSM was discharged from the Army National Guard on 26 September
1990 for the purpose of enlistment in the U.S. Army Reserve.  He enlisted
in the USAR on 27 September 1990.

5.  On 6 August 1997, the FSM applied for retired pay, completed a DD Form
2656 (Data for Payment of Retired Personnel) and elected to participate in
the SBP for spouse only coverage, full base amount.  His DD Form 2656 shows
his retirement date as 9 November 1997.

6.  The FSM and the applicant were divorced on 21 September 2000.  The
divorce decree states in part that "B____ L__ L___, SR. represents and
warrants that he is the owner of a civil service pension which currently
pays him $1,021.95 per month, and of a reserve pension plan which currently
pays him $325.12 per month, and that J_____ S. L_____ is designated as the
beneficiary of each plan. B____ L__ L___, SR. is ORDERED AND DECREED to
maintain J_____ S. L_____ as the beneficiary of both plans, and is ENJOINED
from taking any action that would reduce or eliminate the benefits payable
to J_____ S. L_____ upon his death."  The divorce decree does not
specifically mention the SBP.

7.  The FSM died on 18 September 2004.  The death certificate shows his
marital status as divorced.

8.  Information obtained from the Defense Finance and Accounting Service
(DFAS) on 1July 2005 revealed that the FSM sent a copy of the divorce
decree to them in April 2004.  At that time, the SBP coverage was
suspended.

9.  The FSM's personnel records contain a document regarding his RCSBP
information.  This document indicates that there is no current beneficiary
for the SBP annuity.  This document also indicates that DFAS apparently
determined the FSM's RCSBP election to be invalid.

10.  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.

11.  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.  Once a member elects either Options B or C in any category
of coverage, that election is irrevocable.  Option B and C participants do
not make a new SBP election at age 60.  They cannot cancel SBP
participation or change options they had in RCSBP – it automatically rolls
into SBP coverage.

12.  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.

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

14.  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.

15.  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 who 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 of
the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM received his notification of eligibility for Reserve retirement
benefits at age 60 on 20 July 1989.  He was married to the applicant at
that time; however, while the DD Form 1883 indicated full base amount and
option C, the type of coverage was not listed and it appears DFAS did not
accept this form as a valid election.

2.  The FSM applied for retired pay and elected to participate in the
standard SBP for spouse coverage in August 1997.

3.  The FSM and the applicant were divorced on 21 September 2000.  The
divorce decree orders that the applicant be the beneficiary of the FSM's
pension plans.  The SBP is not specifically mentioned; however, it is
reasonable to read the term "reserve pension plan" in conjunction with the
term "beneficiary" as synonymous with the SBP annuity.

4.  The FSM died on 18 September 2004.  He had continued to pay the SBP
premiums from the time of the divorce in September 2000 until a few months
before his death.  While it cannot be determined what triggered the FSM to
send DFAS the divorce decree so long after the divorce, the evidence shows
he never remarried.  Therefore, the Board concludes it would be equitable
to show it was his intention to provide the SBP for the applicant and his
records should be corrected to show he requested former spouse coverage
within the required time frame.

BOARD VOTE:

JS______  DJ______  MF______  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 the FSM requested his SBP beneficiary be changed to
former spouse coverage on 1 October 2000 and that his request was received
and processed by the appropriate office in a timely manner.

2.  That the applicant be advised the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.

3.  That the applicant be paid an annuity based upon the FSM’s election of
former spouse SBP coverage retroactive to the date of his death.




                                  John Slone____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009530                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050811D                               |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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