RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20040010875


      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. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 reflect her
entitlement to Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, she was never informed her former
husband declined SBP coverage.  She claims she is entitled to the SBP
coverage from the FSM based on her original 1983 divorce decree, which
included a maintenance agreement entitling her to SBP coverage, and a 1994
court order on the continued validity of the original maintenance
agreement.

3.  The applicant provides the following documents in support of her
application:  Self-Authored Letter; Marriage Certificate; Defense Finance
and Accounting Service (DFAS) Letter, dated 19 September 1996; Divorce
Decree, dated
28 October 1983; and Court Order, dated 31 October 1994.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he was released from active duty for the purpose
of length of service retirement on 31 August 1975.  At the time, he held
the rank of chief warrant officer three (CW3), and had completed 21 years,
7 months, and
23 days of active military service.

2.  On 27 August 1975, during his retirement processing, the FSM completed
a Data for Payment of Retired Army Personnel (DA Form 4240).  In this
document, he elected “Spouse Only” SBP coverage at the reduced base amount
of $300.

3.  On 17 October 1983, the applicant and the FSM finalized and entered
into a separation agreement that required the FSM to maintain SBP coverage
for his children.  It further contained provisions of maintaining SBP
coverage for the applicant, but only after the minor children were
emancipated, and as long as she had not pre-deceased him or remarried.

4.  On 28 October 1983, a Decree of Dissolution of Marriage was issued by
the District Court of Arapahoe County, Colorado.  The divorce decree
stipulated that the separation agreement entered into by the FSM and
applicant was incorporated and would be adhered to by both parties.

5.  Subsequent to the divorce, the applicant married a Colonel in the
United States Air Force.  This marriage resulted in divorce sometime prior
to October 1994.

6.  In 1994, the FSM petitioned the District Court of Arapahoe County,
State of Colorado, to terminate the maintenance portion of the separation
agreement entered into by him and the applicant in 1983.  On 31 October
1994, the court issued an order that found the maintenance provisions of
the separation agreement were contractual and non-modifiable, and it denied
the FSM’s motion to terminate the agreement.

7.  The FSM remarried, this marriage ended in divorce on 31 October 1995,
and on 4 August 2003, the FSM died.

8.  In connection with the processing of this case, a member of the Board
staff contacted SBP officials of the DFAS.  These officials confirmed the
FSM’s record showed he made an initial SBP election of “Spouse Only” on 27
August 1975.  The DFAS record further showed the FSM changed his SBP
election to “No Beneficiary, Children Excluded” on 31 October 1995.

9.  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.

10.  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 a community property in divorce cases if they
so chose.

11.  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.

12.  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.
DISCUSSION AND CONCLUSIONS:

1.  By law, prior to the implementation of Public Law 99-661, the courts
were not permitted to order SBP coverage without the permission of the
member, in this case the FSM.

2.  The evidence of record confirms the applicant and FSM were divorced on
28 October 1983, prior to the implementation of Public Law 99-661.  As a
result, the court was not allowed to direct SBP coverage without the
consent of the FSM.  The evidence shows the FSM did not change his SBP
election of “Spouse Only” subsequent to his divorce from the applicant in
1983.  Further, he never made a “Former Spouse” SBP election subsequent to
his divorce.  This clearly shows he had no intention of providing the
applicant SBP protection subsequent to their 1983 divorce.

3.  The DFAS records confirm the applicant retained “Spouse Only” SBP
protection for his new wife until that marriage terminated in divorce in
1995, at which time he suspended SBP coverage.

4.  In view of the facts of this case, given courts were not permitted to
order SBP coverage without the consent of the FSM at the time of the 1983
divorce, and based on the FSM’s clear intent not to provide the applicant
SBP coverage, it does not appear a correction of the FSM’s SBP election
would be appropriate at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__CG___  ___RTD  _  __LVB__  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Curtis Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010875                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1975/08/31                              |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]