RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 July 2004
      DOCKET NUMBER:   AR2004100197

      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. Prevolia Harper               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |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, in effect, that the records of her deceased
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 in her letter of explanation, dated 3 December
2003, that she was removed as a beneficiary under the SBP because she did
not know she was required to send a written request for a deemed election
within one year of their divorce.

3.  The applicant further states that incident to their divorce, she
entered into a written agreement (approved by a court order) with the FSM
to make an election for her continued coverage under the SBP.

4.  The applicant provides a letter from the United States Marine Corps
Consolidated Legal Assistance Office at Camp Lejeune, North Carolina, dated
   3 November 2003; a certified true copy of the FSM's death certificate,
dated 8 July 2002; a copy of the applicant's birth certificate; a copy of a
consent order from the North Carolina General District Court, dated 9
December 2002; an affidavit, dated 8 August 2002; a copy of a marriage
certificate, dated 9 May 1970; and a copy of a Defense Finance and
Accounting Service (DFAS) Retiree account statement, dated 2 January 1997.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he was born on 6 January 1948.  He
enlisted in the Regular Army on 24 July 1968.  The applicant and the FSM
were married on 9 May 1970.  He retired on 31 August 1992.  At that time,
he elected to participate in the SBP for spouse and children coverage for
the full base amount.

2.  The applicant and the FSM were divorced on 25 June 1999.  The consent
order provided by the applicant states in pertinent part that, "the
Defendant shall retain Plaintiff as beneficiary under the Survivor's
Benefits portion of his military benefits."

3.  The FSM died on 8 July 2002.  The death certificate indicates that he
was  divorced.  Records at DFAS show that the FSM paid SBP premiums until
his death.  Additionally, DFAS has no record that anyone else has submitted
a claim for the SBP annuity.

4.  The applicant submitted a copy of the FSM's pay account information,
dated 6 December 1997, which shows that he elected SBP coverage for spouse
and children.

5.  The applicant submitted an affidavit from her attorney, dated 8 August
2002.  The attorney stated in her affidavit that in 1999 and 2000, she
represented the applicant in a civil action in the New Hanover County
District Court.  The attorney also stated that she failed to advise the
applicant of the necessary requirements to obtain her SBP benefits.

6.  The applicant submitted a letter through the military Legal Assistance
Office at Camp Lejeune, North Carolina, dated 3 November 2003.  The
applicant states in her letter, that she is requesting reinstatement as the
beneficiary under the FSM's SBP in accordance with the Divorce Consent
Order, dated 9 December 1999.  She continues that she was not aware of the
requirement to send a written request for deemed election within one year
of divorce and that her civilian attorney failed to advise her of this
requirement.

7.  Public Law 92-425, the SPB, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
an annuity after death to surviving dependents.

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

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

10.  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.

11.  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, 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.  The FSM enrolled in the SBP, effective 8 June 1992 for spouse and
children coverage.  The FSM divorced in June 1999.  On 9 December 1999, a
consent order between the applicant and the FSM was established.  The FSM
was ordered to designate his former spouse as his SBP beneficiary.  It
appears that the FSM failed to change his SBP coverage from spouse to
former spouse coverage and the former spouse failed to request a deemed
election within one year of the divorce as required by law.

2.  However, the FSM continued to pay the SBP premiums until his death in
compliance with the court order.  The available evidence shows that he did
not remarry.  It is presumed that the FSM believed that continuing to pay
the SBP premiums would allow his former spouse to receive the SBP annuity
after his death.  It would be equitable to correct his records to show that
he changed his SBP coverage to former spouse and children coverage in a
timely manner as required by law.

BOARD VOTE:

_TEO____  _JNS___  __RTD__  GRANT 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 individual concerned be corrected by
showing that the FSM requested, in writing, that his SBP coverage be
changed to former spouse and children coverage and that his request was
processed in a timely manner.




                __John N. Slone__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100197                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/29                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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