RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 September 2005
      DOCKET NUMBER:  AR20040011510


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 spouse, a former service member (FSM), be corrected to show he
changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.


2.  The applicant states her late husband never notified the Army about her
receiving SBP benefits as stated in their divorce decree.  She was told by
Army officials in 2000 that the divorce decree had to be filed within one
year of their divorce and that there was no appeal.

3.  The applicant provides a copy of the FSM's death certificate; the
divorce decree; the separation agreement; retirement orders; a marriage
license; a Department of Defense pay stub; a DD Form 214 (Certificate of
Release or Discharge from Active Duty); and a handwritten settlement
proposal.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted on 18 September 1964.  He married on 2 May 1965.  He
was honorably discharged on 13 May 1968 to accept appointment as a Warrant
Officer.

2.  The FSM enrolled in the SBP on 8 March 1988 for spouse coverage, full
base amount.  The FSM retired in the rank of Chief Warrant Officer Four on
30 April 1988 after completing over 23 years of active service.

3.  The FSM divorced on 11 May 1995.  The separation agreement,
incorporated into the divorce decree, indicates that the applicant was to
be the beneficiary under the SBP.

4.  The death certificate shows the FSM remarried.  The date of his
remarriage is unknown.

5.  The FSM died on 25 January 2004.

6.  Records at the Defense and Finance and Accounting Service show the
FSM's widow is receiving the SBP annuity.

7.  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.

8.  Public Law 94-496 (14 October 1976, but effective 1 October 1976),
provided that the waiting period for a new spouse's eligibility was reduced
to one year following post-retirement marriage.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), enacted 8 September 1982, established SBP coverage for former
spouses of retiring members.

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

11.  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.

12.  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.  In accordance with Federal Law, a request to change SBP coverage from
spouse to former spouse coverage must have been made within one year of the
date of divorce by either the FSM or the applicant.  It appears neither of
them did so.

2.  The provisions in the divorce decree concerning the SBP and the
applicant's current request are acknowledged.  However, there is evidence
to show the FSM remarried, although the date is unknown.  In accordance
with Public Law 94-496, a new spouse becomes eligible for the SBP annuity
on the first anniversary of the date of remarriage.  After the first
anniversary, the spouse accrues a vested interest in the SBP annuity.
Therefore, the FSM's current spouse is the legal beneficiary of the SBP.
Regrettably, absent the widow relinquishing her right to the SBP annuity,
there is no basis for granting the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS_____  EA______  CK______  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.



            ___John Slone_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011510                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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