RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 September 2004
      DOCKET NUMBER:   AR2004100067


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 that she be awarded the benefits of her former
deceased spouse, a former service member (FSM), under the Reserve
Components Survivor Benefit Program (RCSBP).

2.  The applicant states, in effect, that she married the FSM three times
during his military service and was married for 17 years.  She goes on to
state that she was unaware that the FSM, who was her husband at the time,
designated her as the beneficiary of his RCSBP benefits and thus did not
include it in the divorce settlement.

3.  The applicant provides copies of her marriage and divorce documents as
well as a copy of the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Mississippi Army National Guard (MSARNG) on
26 November 1969 and served until he was honorably discharged in the pay
grade of E-6 on 21 May 1979.  He again enlisted in the MSARNG on 8 July
1982 and served through a series of continuous reenlistments.

2.  On 15 August 1995, the FSM received his Notification of Eligibility (20-
year letter) for Retired Pay at age 60 (15 December 2009).

3.  On 31 August 1995, the FSM completed a Survivor Benefit Plan Election
Certificate (DD Form 1883) in which he named the applicant as his spouse
and elected to provide full (spouse only) Survivor Benefit Plan (SBP)
coverage under option C.  Option C is an election in which an immediate
annuity is provided to the beneficiary beginning on the day after the death
of the service member, whether before or after age 60.  It is considered
full coverage and is the most expensive option available.  Election of full
coverage does not require spousal consent.

4.  The documents provided by the applicant show that she married the FSM
on 8 March 1977 and divorced him on 24 February 1982.  She again married
him on 8 March 1983 and divorced him on 27 July 1989.  She again married
him on 4 December 1990 and divorced him on 15 August 2000.  A review of all
of the divorce decrees fails to show any mention of the applicant's
entitlement to SBP benefits or any entitlements related to Retired Pay.
The divorce decree indicates that both parties waived, released and
relinquished any claim or right whatsoever, then and thereafter, to the
estate of the other, including but not limited to alimony and any other
support or payments by whatever name they may be designated, except as
provided for in the divorce decree.  The divorce decree also indicates that
no children were born of the marriage.

5.  The FSM died of a heart attack on 20 July 2003 at the age of 53 and his
death certificate indicates that he was divorced.

6.  On 25 August 2003, the applicant submitted an Application for Annuity
under the Retired Serviceman's Family Protection Plan (RSFPP) and/or the
SBP      (DD Form 1884).  She indicated on that form that she was not
legally married to the FSM at the time of his death.

7.  On 25 September 2003, officials at the Army Reserve Personnel Command
(ARPERSCOM), Transition and Separations Branch, notified the applicant, in
effect, that there is no provision in the law governing the SBP whereby a
divorced former spouse may be granted an annuity unless both parties
voluntarily enact the agreement to provide an annuity in the event of the
service member's death.

8.  A review of the available records fails to show that the FSM ever
changed his SBP election from spouse to former spouse.

9.  Public Law 95-297, September 30, 1978 established the Reserve Component
SBP to offer survivor protection during gray area service (between time a
member qualifies for retirement but not yet age 60 and in receipt of
retired pay).  It provides, in effect, that military members could elect to
have their retired pay reduced to provide for an annuity after death to
surviving dependents.  The election made by the member was irrevocable
(unless an open season was announced).  In those cases where the members
elected not to participate in the SBP or to participate at less than the
maximum coverage, spousal concurrence is required.  Enrollment for
Reservists is required within 90 days of receiving their notice of
eligibility (20-year letter).   Option A, if elected was at no cost to the
member since it provided no coverage and no annuity was paid.  It allowed
the member to attain age 60 before the member elected the rate of SBP he or
she desired.  Option B, if selected, allowed the beneficiary to receive an
annuity if the service member died before reaching age 60, but delayed
payment until the member’s 60th birthday and is less expensive that Option
C, the most expensive option that provides an immediate annuity if the
member dies before age 60.  The types of coverage available are spouse
only, spouse and children, children only, former spouse, and natural person
with insurable interest.

10.  It further provides that a surviving spouse eligible to receive RCSBP
payments is the widow or widower who is married to the service member at
the time of the member's death and who was married to the member at the
time of his or her SBP election, was married to the FSM for at least 1 year
prior to the death of the FSM or is the parent of a child born to a post-
election marriage to the deceased member.  A spouse must be married to the
member on the date retired pay begins to qualify as an eligible beneficiary
under the spouse only option.

11.  Public Law 98-94, September 24, 1983, broadened SBP coverage for
former spouses.  Under current law, National Guard members can provide for
a former spouse with an initial SBP election, that is, at the time of
retirement.  This applies whether or not the member is married at the time.
 Present and future SBP participants who elected or elect to provide spouse
or spouse and child protection and are subsequently divorced from that
spouse may change participation to former spouse coverage.  The change must
be requested within   1 year of the divorce action.  If the decree or
agreement includes entitlement to the member's RCSBP, the former spouse has
1 year from the date on which the divorce action becomes final to take this
action.  All former-spouse elections must be in writing and signed by the
SBP participant.  In addition, the notification of the election must state
whether the election is entered into voluntarily as part of a divorce,
dissolution, or annulment and if so, whether the agreement has been
incorporated into a court order.

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage under the former spouse option (without the member's
agreement) in those cases where the member is participating in the SBP or
was still on active duty and had not yet made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

2.  The available evidence shows that at the time the FSM made his SBP
election in 1995, he was married to the applicant, he elected maximum
coverage available and he designated the applicant as the beneficiary under
the spouse only option.

3.  However, the applicant and the FSM were divorced on 15 August 2000 and
the applicant was no longer qualified to receive SBP benefits under the
spouse only option.  Additionally, the FSM did not elect to continue
coverage under the former spouse option and there is no evidence to suggest
that he attempted to do so.

4.  The evidence submitted by the applicant with her application also fails
to show that she was awarded entitlement to SBP coverage after her divorce
from the FSM.

5.  Accordingly, the applicant is not entitled under the applicable laws
and regulations governing entitlement to SBP benefits, to receive the FSM's
SBP benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __jea___  __lds___  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.




                 James E. Vick
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100067                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |347/ELIGIBILITY FOR SBP                 |
|1.137.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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