RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 July 2004
      DOCKET NUMBER:   AR2004100155


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 the Reserve Component Survivor Benefit Plan
(RCSBP) election of her deceased former spouse, a former service member
(FSM), be changed to former spouse coverage.

2.  The applicant states that she was married to the FSM for over 19 years.
 Their home was sold in a court-ordered property settlement.  In return,
she was to have spousal support until he retired and a share of both his
retirements (military and civil service) and both survivor benefit plans.
She first heard of a deemed election in September 1996 and filed a request
for a deemed election in January 1997.

3.  The applicant provides the death certificate; a notification from the
Defense Finance and Accounting Service (DFAS); a court reporter brief;
written transcripts of the trial with a copy of tapes of the trial; the
divorce decree; paperwork filed for a portion of retired pay and SBP
annuity; Office of Personnel Management's        25 August 1986
acknowledgement for the paperwork sent for the court-ordered former spouse
annuity; the request for deemed election; a 3 February 1997 acknowledgement
of receipt of the request for deemed election; a 23 February 2000 letter; a
15 March 2000 letter from the applicant's attorney; and a Monthly
Entitlement statement dated 2 January 2001.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 February 1940.  He enlisted in the U. S. Marine
Corps in 1958.  He and the applicant married on 5 August 1966.  He was
separated from the U. S. Marine Corps on 7 April 1972.  He enlisted in the
Army National Guard on 17 April 1972.  His notification of eligibility for
retired pay at age 60 (his 20-year letter) is dated 23 February 1981.  On 7
March 1981, he completed a DD Form 1883 (Survivor Benefit Plan Election
Certificate) electing to participate in the RCSBP for spouse and children
coverage, full base amount, option C.

2.  On 17 May 1986, the FSM and the applicant divorced.  The divorce decree
awarded the applicant a portion of both his military and civil service
retired pays.  It also stated, in pertinent part, that, "The Court finding
that it is appropriate that the Respondent/Wife receive the same survivors
annuity benefits, should the Petitioner/participant predecease her…"  It
also stated, "Should the payments provided herein be reduced because of the
election of a survivor annuity in favor of the Respondent/Alternate Payee,
then Respondent/Alternate Payee's benefits should be reduced in the same
percentage."  It also stated, "…the former spouse of the
Petitioner/Participant, namely (the applicant)…shall be treated as the
surviving spouse…This Participant is ordered to designate the
Respondent/Alternate Payee as survivor beneficiary under the Plan."

3.  By letter dated 20 May 1986, the applicant's attorney forwarded a copy
of the divorce decree to the Office of Personnel Management (OPM),
highlighted for convenience.

4.  By letter dated 20 May 1986, the applicant's attorney forwarded a copy
of the divorce decree to the U. S. Army Finance and Accounting Center,
highlighted for convenience.  The letter also stated, "We assume there will
be no problem and you will comply or advise otherwise."

5.  By letter dated 9 July 1986, the applicant's attorney forwarded an
application for direct payments to the U. S. Army Finance and Accounting
Center.

6.  By letter dated 25 August 1986, OPM acknowledged receipt of the divorce
decree and informed the applicant that her entitlement to a court-ordered
former spouse survivor annuity also entitled her to other benefits.

7.  The FSM remarried on 17 September 1988.

8.  On 25 August 1992, the FSM completed a Standard Form 280 (formerly an
OPM form) (Election of Former Spouse Survivor Annuity or Combination
Current/Former Spouse Annuity).  He elected to split his civil service
annuity between his spouse and the applicant.

9.  By letter dated 16 September 1992, the applicant's attorney informed
her, in part, that conversation with a clerk at the U. S. Army Finance and
Accounting Center revealed that they had no details if the divorce decree
was received or whether she would receive any benefits.  The clerk expected
to receive the FSM's file soon, after he formally retired.

10.  On 1 October 1992, the FSM separated from the Army National Guard and
transferred to the Retired Reserve.

11.  By letter dated 17 January 1997, the applicant's attorney forwarded a
request for a deemed election to DFAS.

12.  By letter dated 3 February 1997, DFAS acknowledged receipt of the
applicant's request for former spouse payments from the FSM's retired pay
with supporting documents.

13.  The FSM turned age 60 on 7 February 2000.
14.  By letter dated 23 February 2000, DFAS again acknowledged receipt of
the applicant's request for payment of a portion of the FSM's retired pay
as a division of property under the Uniformed Services Former Spouses'
Protection Act (USFSPA).  It also informed her that if the divorce decree
specified she was to be designated as a former spouse beneficiary for the
SBP, she must make a deemed election.

15.  By letter dated 15 March 2000, the applicant's attorney informed DFAS
that a request for a deemed election was filed by letter dated 17 January
1997.

16.  The FSM died on 2 July 2003.

17.  DFAS confirmed on 13 July 2004 that the SBP annuity is being paid to
the FSM's widow.

18.  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.  Elections are made by
category, not by name and cannot be changed except as provided for by law.

19.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a
way for those who had qualified for reserve retirement but were not yet age
60, to provide an annuity for their survivors should they die before
reaching age 60.  Three options are available:  (A)  elect to decline
enrollment and choose at age 60 whether to start SBP participation; (B)
elect that a beneficiary receive an annuity if they die before age 60 but
delay payment of it until the date of the member’s 60th birthday; (C)
elect that a beneficiary receive an annuity immediately upon their death if
before age 60.  If death does not occur before age 60, the RCSBP costs for
options B and C are deducted from the member’s retired pay.

20.  Public Law 97-252, the Uniformed Services Former Spouses Protection
Act, 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 community property in divorce cases if they so
chose.  It established procedures by which a former spouse could receive
all or a portion of that court settlement as a direct payment from the
service finance center.

21.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

22.  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.

23.  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.

24.  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.  When the FSM and the applicant were divorced on 17 May 1986, courts
were not yet empowered to order SBP coverage for a former spouse without
the member's agreement.  Although the court order is not crystal clear as
to which survivor benefit plan (civil service or military) is referred to
in the various pertinent parts, it appears the FSM did agree to provide the
military SBP for the applicant.

2.  However, federal law clearly requires a member to make a written
application to the Army to have his or her SBP election changed from
“spouse” to “former spouse.”  If he or she fails or refuses to do so,
federal law clearly states that the former spouse concerned may make a
written request that such an election be deemed to have been made.  The law
also provides, however, 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.  In this
case, the law’s one-year time limit to request a deemed election expired on
16 May 1987.  The FSM remarried in September 1988.  One year after his
marriage, his spouse became the SBP beneficiary.

3.  It is acknowledged that the applicant's attorney made a request for a
deemed election in January 1997; however, that was outside of the required
time limit.   The lawful beneficiary of the FSM’s SBP is currently drawing
the SBP annuity.  Further, the 20 May 1986 correspondence from the
applicant's attorney to DFAS, which would have been timely, failed to seek
a deemed election either directly or implicitly.  Absent a statement from
the FSM’s widow asserting that she agrees to renounce payment of the SBP
annuity in perpetuity in favor of the applicant, no action will be taken to
prevent the lawful beneficiary from receiving those benefits.  To do so
would constitute an unconstitutional taking without due process of law.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rtd___  __teo___  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 N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100155                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040729                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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