RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 October 2004
      DOCKET NUMBER:   AR2004100382


      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:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry Bergquist               |     |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 remitted her portion of the retired
pay of her deceased former spouse, a former service member (FSM), that was
paid to the Government for a tax levy against the FSM from September 1999
to June 2003.

2.  The applicant states that the military passed a law in 1991 to protect
former spouses from the injustice of a levy on their portion of court-
awarded retired pay. The debt was not her responsibility, but since they
divorced in 1981 the law did not take care of her.

3.  The applicant provides the 17 attachments listed on the "List of
Attachments to Letter of December 15, 2003 – Form DD – 149 – Item #9."

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty as a commissioned officer on 20 January
1958.  He and the applicant married on an unknown date.  He retired on 1
September 1979.

2.  The completed divorce decree is not available.  The final judgment is
dated       10 July 1981.  The court apparently awarded the applicant a
portion of the FSM's
retired pay.  The document provided by the applicant entitled "IRS History"
indicates that the FSM told her he would rather send her money than for her
to receive monthly checks (presumably from the Government).  Around
1997/1998, the FSM told her she would not get any more money since he
received a large assessment from the Internal Revenue Service (IRS)
(confirmed by Notice of Levy dated             9 October 1997).

3.  The "IRS History" also indicates that around September 1999 the
applicant contacted the Department of Defense and a direct remittance of
her portion of the FSM's retired pay was started (confirmed by Defense
Finance and Accounting Service letter dated 28 September 1999).  However,
when the checks started to become smaller, she was informed that the IRS
issued a levy against the FSM's retired pay and the levy came off the top.
She received a portion of the remainder.

4.  The FSM died on 22 June 2003.

5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), enacted 8 September 1982, decreed that state courts could treat
disposable military retired pay as community property in divorce cases if
they so chose in cases where the court order became final after 25 June
1981.  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.  At that time, by definition retired pay consisted only of
the total monthly pay less amounts which were owed to the Federal
government (i.e., taxes).

6.  Public Law 101-510, section 555, enacted 5 November 1990 amended the
USFSPA.  In pertinent part, it redefined "disposable retired pay."  It
redefined such pay to exclude military retired pay waived in order for the
retiree to receive veterans' disability and civil service benefits.  It
also excluded from the computation of disposable retired pay amounts owed
by the member to the Untied States, fines and forfeitures from courts-
martial, federal employment taxes, and amounts withheld for federal and
state income tax purposes.  This amendment applied only with respect to
divorces, dissolutions of marriage, annulments, and legal separations that
became effective after the end of the 90-day period beginning on the date
of its enactment.

DISCUSSION AND CONCLUSIONS:

1.  The Board acknowledges that it was an injustice to, in effect, make her
pay for the FSM's tax indebtedness by reducing her portion of his retired
pay.  Congress also recognized this fact when it passed Public 101-510 and
redefined disposable retired pay.

2.  Unfortunately, it appears Congress made a deliberate decision not to
provide for retroactive application of the law.  The law was passed on 5
November 1990 and specifically was worded to apply only with respect to
divorces, dissolutions of marriage, annulments, and legal separations that
became effective after the end of the 90-day period beginning on the date
of its enactment.

3.  The FSM and the applicant divorced in 1981, prior to the effective date
of the new law.  Regrettably, the Board cannot act contrary to
Congressional statute and intent.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jtm___  __lcb___  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.




            __Kathleen A. Newman__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100382                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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