RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040009945


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr.  Lawrence Foster              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 her
entitlement to former spouse Survivor Benefit Plan (SBP) benefits.

2.  The applicant states, in effect, the divorce decree of her and the FSM
stipulated she was entitled to her former spouse SBP protection in order to
care for their two children.

3.  The applicant provides the following documents in support of her
application:  FSM’s Death Certificate; Divorce Decree; Separation Agreement
and Property Settlement Agreement; Application for Annuity under the
Retired Serviceman's Family Protection Plan and or Survivor Benefit Plan
(DD Form 1884); Defense Finance and Accounting (DFAS) Letter, dated 28
April 2004; Annuitant Pay Operations, DFAS Letter, dated 4 August 2004; and
Directorate of Debt and Claims Management, DFAS Letter, dated 2 September
2004.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he entered active duty on 24 January 1978, and
he married the applicant on 2 February 1983.

2.  On 18 November 1997, the FSM completed a Data for Payment of Retired
Personnel (DD Form 2656) and elected “Spouse Only” SBP coverage.

3.  On 31 January 1998, the FSM retired, in the rank and pay grade of
sergeant first class/E-7 (SFC/E-7), after completing 20 years of active
military service.

4.  On 31 October 2000, the applicant and FSM entered into a separation and
property settlement agreement.  This agreement stipulated, in pertinent
part, that until a court order was issued, the applicant would receive 42.5
percent of the FSM’s military retainer pay from the DFAS based on being
married to the FSM for 17 years of his 20 year military career.  On 22
January 2001, the FSM and the applicant were divorced.

5.  On 24 March 2001, two months after the divorce, the FSM died.

6.  On 8 May 2001, the applicant completed an Application for Annuity Under
the Retired Serviceman's Family Protection Plan and/or SBP (DD Form 1884)
requesting SBP coverage.  The applicant indicated, in Section A Item 6
(Were you legally married to the deceased at time of Death) and Section G
Item C (Relationship to Deceased) that she was the former spouse of the FSM
and she submitted the application with a copy of her divorce decree.  This
application was subsequently approved and she began receiving SBP annuity
payments.

7.  In October 2003, during a review of the applicant’s account, DFAS
determined the applicant’s SBP account was erroneously established and that
the FSM had not elected former spouse SBP coverage for the applicant
subsequent to their divorce.  At this time, DFAS established a debt for the
applicant in the amount of $7,863.00 for the SBP annuities she was paid
between 25 March 2001 and
30 September 2003.

8.  On 2 September 2004, DFAS informed the applicant that her debt was
correct.  DFAS also informed the applicant that her application requesting
waiver of the $7,863.00 debt that resulted from erroneous SBP annuity
payments could result in relief if she applied to this Board.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA) dated 8 September 1982, established SBP for former military
spouses.  Title 10, U. S. Code, section 1448b3 (10 USC 1448b3) 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.  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.

10.  Army Regulation 15-185 prescribes the policies and procedures for
correction of military records by the Secretary of the Army, acting through
the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3
provides guidance on who may apply.  It states, in pertinent part, that
depending on the circumstances, a child, spouse, parent or other close
relative, heir, or legal representative (such as a guardian or executor) of
the Soldier or FSM may be able to demonstrate a proper interest.
Applicants must send proof of proper interest with the application when
requesting correction of another person's military records.
DISCUSSION AND CONCLUSIONS:

1.  It is clear the applicant believed she was entitled to the SBP annuity,
as evidenced by her submitting her divorce decree and notifying DFAS that
she was the former spouse of the deceased FSM when she applied for the SBP
annuity.  However, based on the absence of SBP language in the divorce
decree and of a former spouse SBP election by the FSM, the DFAS action to
deny her the SBP annuity and to establish the debt in question was
accomplished in accordance with the governing law and policy.

2.  The evidence of record confirms the FSM elected to participate in the
SBP and elected spouse coverage for the applicant when he retired, and that
the applicant and FSM entered into a separation and property settlement
agreement, in which they agreed the applicant would receive 42.5 percent of
the FSM’s military retired pay based on their being married for 17 of his
20 years of military service.  However, SBP protection was not specifically
addressed in this agreement, and the FSM did not change his SBP election to
former spouse in the two months after the divorce before he died.

3.  The assumption on the part of the applicant that she retained
entitlement to SBP protection is supported by the DFAS decision to accept
her application for the SBP annuity, which included a copy of the divorce
agreement, upon the FSM’s death, and paying the SBP annuity for more than
two years before terminating entitlement.  However, this factor alone does
not establish that it was the FSM’s intent to provide SBP protection for
the applicant at the time of their divorce.

4.  In establishing the SBP it was Congress's intent to provide for those
spouses who supported the military member for the majority of his or her
military career.  Further, the intent of Congress in establishing the
USFSPA was to protect this same group of individuals when they became
former spouses subsequent to a divorce from the FSM.  However, absent
language granting the applicant entitlement to SBP protection as a former
spouse in the divorce decree, and based on the lack of an election change
to former spouse coverage subsequent to the divorce, there is an
insufficient evidentiary basis to support granting the requested relief.

5.  The applicant is advised that if she can provide new evidence that
shows the FSM intended to change his SBP election to former spouse coverage
subsequent to their divorce, she may resubmit her application for
reconsideration by the Board.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___REB _  ___LF __  __LMD___  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.




                            ____Ronald E. Blakely _____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009945                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-09-27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/01/31                              |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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