RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 September 2005
      DOCKET NUMBER:  AR20040009877


      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. Lisa O. Guion                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 husband, a former service member (FSM), be corrected to show he
changed his Survivor Benefit Plan (SBP) election to former spouse coverage.

2.  The applicant states, in effect, that under the Pensions provision of
the Property Settlement Agreement of her divorce decree, it states that
"Should the Husband predecease the Wife, the Wife shall be the sole
survivor beneficiary of said pension."  She claims that almost one year
after the FSM's death she realized he completely disregarded the court
order and stopped making contributions to the pension in 1991.  She further
indicates she and the FSM were married for almost 25 years, and during 20
of those years, she traveled with the FSM as a military spouse and
helpmate:  packing and unpacking, clearing old quarters, setting up new
quarters, caring for their three minor children, putting her career on hold
to ensure that his military career came first, and adapting to wherever he
was stationed, whether in the United States or overseas.

3.  The applicant further states she and the FSM never remarried, and
maintained a bond and friendship until he died on 10 August 2003, with her
at his bedside.  She finally states it is her belief the court order that
declared her as the sole survivor beneficiary of the FSM's SBP should be
upheld.

4.  The applicant provides a self-authored statement, death certificate,
marriage certificate, and divorce decree and property settlement agreement
in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the United States Army on 20 April 1951.  He and
the applicant were married on 31 December 1955 in a Vanderburgh, Indiana.
The FSM retired on 31 October 1977.  At that time, he elected to
participate in the SBP for spouse only coverage reduced base amount.

2.  On 27 June 1990, the FSM and the applicant were divorced.  The property
settlement agreement was approved and incorporated in the final judgment.
Paragraph 19 (Pensions) of the property settlement agreement stated in
pertinent part, "The Wife shall be specifically maintained as an
irrevocable survivor beneficiary on the Husband's retirement plan with the
Department of the Army and should the Husband predecease the Wife, the Wife
shall be the sole survivor beneficiary of said pension."

3.  The FSM died on 10 August 2003.  The death certificate submitted by the
applicant indicates that the FSM was divorced at the time of his death and
there is no evidence in his Military Personnel Records Jacket (MPRJ) to
show that he remarried.

4.  During the processing of this case, a staff member of the Board
contacted the Defense Finance and Accounting Service (DFAS) to determine
the applicant's entitlement to SBP coverage.  On 19 August 2005, a DFAS
official confirmed that payments for SBP premiums were discontinued on 1
August 1990.

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.

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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.  It established procedures by which a former spouse could receive
all or a portion of that court settlement as a direct payment from the
service finance center.

7.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

8.  Public Law 98-525, enacted 19 October 1984, provided that a former
spouse could request a deemed election within one year of the court order
requiring SBP to be established on the former spouse’s behalf, provided the
member agreed to provide coverage.

9.  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.

10.  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 of
the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The law
also permits the former spouse concerned to request a former spouse SBP
coverage election be deemed to have been made within one year of the date
of a court order of divorce.  The FSM failed to make a written request to
change his SBP coverage to former spouse coverage within one year of the
divorce and the applicant failed to make a request for a deemed election
within one year of the divorce as required by law.

2.  The evidence of record confirms the applicant and his former spouse
were divorced on 27 June 1990.  The divorce decree directed that both
parties comply with the terms of a property settlement agreement they had
entered into, which included continued SBP coverage for the applicant as
former spouse.

3.  In establishing the SBP, it was the intent of Congress to provide for
those spouses who supported the military member for the majority of his or
her military career.  The applicant was married to the FSM for the more
than 20 years of his 26 year military career.  The court awarded the
applicant the SBP beneficiary status in the property settlement agreement
portion of the divorce decree entered into by her and the FSM.  The FSM
made her his SBP beneficiary at the time of his retirement from active
duty, and there is no claimant for his SBP annuity based on his elected
reduced base amount of $300.00.  Therefore, in the interest of justice and
equity, it would be appropriate to correct the record to comply with the
divorce decree providing SBP coverage for the applicant as a former spouse
as requested by the applicant at this time.

BOARD VOTE:

___SLP _  __RLD __  __JRM__  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
showing the FSM changed his spouse SBP coverage to former spouse coverage
on 1 August 1990, the date the SBP premiums were discontinued, and by
paying to the applicant the SBP annuity due retroactive to the date of the
FSM's death; and advising the applicant that the Defense Finance and
Accounting Service will be instructed to collect any SBP premium costs due.





            ___Shirley L. Powell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009877                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1977/10/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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