RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 September 2005
      DOCKET NUMBER:  AR20040011723


      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 reconsideration of an earlier request that the
records of her deceased former spouse, 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 the Federal Law (Public Law 97-252) was so new in
1982/1983 that the FSM's and her civilian lawyers had no knowledge of it
and were unable to adequately advise them on military matters.  She
contends the information concerning the necessity to file the information
and judgment of the court was not available to them.  She points out their
property settlement was finalized and recorded on 9 July 1984.

3.  The applicant provides a copy of their property settlement agreement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004102961, on
9 November 2004.

2.  The applicant's submission is new evidence which will be considered by
the Board.

3.  The FSM married the applicant on 15 December 1945.  He retired on 30
April 1960 in the rank of master sergeant after completing 28 years, 7
months, and 12 days of active service.  He enrolled in the SBP on 1
December 1972.  The FSM divorced the applicant on 8 August 1983.  The
applicant provides a copy of their property settlement agreement, dated 9
July 1984, which shows that she was to be the beneficiary under the SBP.

4.  The death certificate shows the FSM remarried and was widowed at the
time of his death.  The FSM's widow died in 1999.

5.  The FSM died on 14 December 2003.

6.  Records at the Defense Finance and Accounting Service (DFAS) show the
FSM enrolled in the SBP for spouse only coverage and that his widow was
listed as the beneficiary.  Records also show the FSM continued to pay SBP
premiums until his death.

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 99-145, dated 8 November 1985, permitted retirees to elect
SBP coverage for a former spouse under spouse coverage provisions vice
insurable interest provisions.

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:

DFAS records show the FSM enrolled in the SBP for spouse only coverage on
1 December 1972.  At the time of his death, his widow was listed as the
beneficiary.  However, since the FSM continued to pay SBP premiums after
his widow's death in 1999 and until his death in 2003, it appears that it
was the FSM's intention to provide the SBP annuity to the applicant per
their property settlement agreement.  Therefore, it would be equitable to
correct his records to show that he requested to change his SBP coverage to
former spouse coverage with the applicant as the beneficiary in a timely
manner.

BOARD VOTE:

JS______  EA______  CK______  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 amendment of the ABCMR’s decision in Docket Number AR2004102961,
dated 9 November 2004.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected to
show the FSM requested former spouse coverage on 1 August 1984 (within one
year of the property settlement agreement awarding the applicant the SBP)
and to show he requested former spouse coverage under spouse coverage
provisions on
9 November 1985 (to be effective 1 December 1985).

2.  That the applicant be paid the SBP annuity effective 14 December 2003,
the date of the FSM's death.




            ____John Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011723                           |
|SUFFIX                  |                                        |
|RECON                   |20041109                                |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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