RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            2 November 2004
      DOCKET NUMBER:   AR2004099911


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 Survivor Benefit Plan (SBP)
election made by her deceased ex-spouse, a former service member (FSM), be
changed to former spouse coverage.

2.  The applicant states, in effect, that she was married to the FSM for 25
years and they were divorced in 1994.  She claims the FSM moved back in
with her in 2000; however, they were not remarried.  She claims the FSM
showed her a letter in which she was identified as his beneficiary and
neither she or the FSM knew they had to change the SBP election within 12
months of their divorce.  She claims the FSM told her the letter he showed
her was all she needed.

3.  The applicant provides the following documents in support of her
application:  FSM Death Certificate, Defense Finance and Accounting Service
(DFAS) Letter, dated 29 May 2001, DFAS Letter, dated 10 November 2003,
Congressional Inquiry Packet, and Four Third-Party Supporting Letters.

CONSIDERATION OF EVIDENCE:

1.  On 12 January 1971, the Army National Guard Bureau issued the applicant
a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year)
Letter informing the applicant he had completed the required years of
service and would be eligible for retired pay upon application at age 60.

2.  In 1987, the applicant completed a SBP Election Certificate (DD Form
1883).  In Section II (Marital, Dependency and Election Status) the
applicant indicated he was married, had dependent children and desired
spouse and children SBP coverage.  He further indicated he was electing
full coverage under Option C (Immediate Coverage).

3.  The FSM and applicant were married on 14 August 1960 and divorced in
1994 after 34 years of marriage.  The divorce decree is not on file in the
record and the applicant did not provide a copy of this document with her
application.

4.  The record shows that neither the FSM nor the applicant took any action
to request a change to the FSM’s SBP election to former spouse coverage
within a year of the divorce decree being issued, as is required by law.
5.  On 31 March 1993, the applicant was discharged from the Army National
Guard and transferred to the United States Army Reserve, Retired Reserve.

6.
6.  On 29 May 2001, the DFAS in response to an inquiry from the FSM,
informed him that their records indicated his SBP beneficiary was his
spouse and the applicant was listed by name.  It further indicated that if
this information was incorrect, the DFAS should be notified.

7.  A Death Certificate issued by the State of Arkansas confirms the FSM
died on 5 April 2003.

8.  On 10 November 2003, in letter response to a Congressional Inquiry, the
DFAS indicated their records indicated the applicant did not request to
change his SBP election to former spouse and that the applicant did not
make a deemed election for former spouse coverage.  It further stated that
the FSM had failed to notify DFAS of their divorce and as a result, SBP
premiums continued to be deducted from his retired pay until the date of
his death.

9.  The three supporting third-party statements provided by the applicant
all attest to the fact the FSM had moved back in with the applicant
sometime in 2000 or 2001 and lived there until his death in 2003.

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.  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 a date of
a court-order of divorce.

2.  The evidence of record confirms the FSM never notified DFAS officials
of his divorce in 1994 and that neither he nor the applicant took the
necessary action to change the FSM’s SBP election from spouse to former
spouse coverage within a year of the divorce.  However, it appears the FSM
believed the applicant retained her SBP beneficiary status and remained
eligible to receive SBP benefits upon his death.  Further, notwithstanding
his failure to comply with program election change requirements, it also
seems clear this was his intent.

3.  DFAS officials confirm that SBP premiums continued to be deducted from
the FSM retired pay through the date of his death.  It is logical to
presume that had the FSM wished to discontinue protection for his former
spouse, he would have withdrawn from the program in order to stop paying
needless SBP premiums.

4.  Further, in response to an inquiry from the FSM in 2001, DFAS officials
informed him his SBP beneficiary was his spouse, and the applicant was
identified by name.  This information could easily have led the FSM to
believe his former spouse, the applicant, retained her SBP beneficiary
status subsequent to their 1994 divorce and clarifies his intent to provide
continued SBP protection to his former spouse.

5.  It is clear the FSM failed to comply with the provisions of the law
that require divorce notification and a former spouse SBP election within
one year of a divorce.  However, this appears to be more a product of
ignorance as opposed to intent.  As a result, given the 34 year marriage of
the FSM and applicant and the fact they lived together at the time of his
death, it would appear to be in the interest of justice, compassion and
equity to grant the requested relief.

BOARD VOTE:

_MKP___  _JRS ___  _RLD ___  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 FSM be corrected by showing he
changed his Survivor Benefit Plan election from spouse to former spouse on
24 August 1994, the date of his divorce; and by providing the eligible
former spouse all Survivor Benefit Plan annuity payments due since the date
of the FSM’s death on 5 April 2003, minus any refunded premiums.




            _MARGARET K. PATTERSON_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099911                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/                                |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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