RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            9 November 2004
      DOCKET NUMBER:   AR2004102030


      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:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard Hassell               |     |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 the disability payment portion
of the applicant’s military retired pay be distributed to her and that she
be designated the beneficiary for Survivor Benefit Plan (SBP) benefits as
directed in the Marital Settlement Agreement (MSA) entered into by her and
the Former Service Member (FSM) that is contained in their 1985 divorce
judgment.

2.  The applicant states, in effect, she is entitled to the military
pension and SBP benefits in question based on the MSA contained in a 1985
divorce judgment.  She claims the FSM recently changed his military pension
to disability income and also changed the SBP coverage to his current wife.


3.  The applicant provides the following documents in support of her
application:  Divorce Decree, MSA, Power of Attorney authorizing her
daughter to act in her behalf and FSM letters regarding the distribution of
his military retired pay.

CONSIDERATION OF EVIDENCE:

1.  On 30 June 1962, the FSM was released from active duty for the purpose
of retirement after completing 20 years and 1 month of active military
service.  On
1 July 1962, the FSM was placed on the Retired List in the rank and pay
grade of major/0-4.

2.  The applicant and FSM were married 3 July 1945 and divorced on
4 March 1985.  The divorce judgment issued by the Superior Court of
California, County of Sonoma included a MSA, the terms of which were
approved and directed to be followed by the court.  The MSA addressed the
retirement interests acquired by the FSM based on his membership in the
Army.  The division of community property section contained in the court
ratified MSA stated, in effect, that the FSM agreed to the applicant
receiving his entire military retirement pension entitlement and to
arranging for the applicant to receive his military retirement checks.  The
MSA further indicated that the FSM promised that the applicant would remain
the sole beneficiary of his SBP benefits.

3.  The applicant provides a letter from the FSM to Army finance officials,
dated 5 November 1984.  In this letter, he stated that he began
participating in the SBP when it was first announced in order to provide
the protection for his spouse, the applicant.  He further indicated that he
and the applicant were in the process of a divorce and it was his intent
for the applicant to continue to receive the SBP protection after the final
divorce decree.  He concluded by requesting the necessary application forms
and copies of the governing regulations.
4.  The applicant also provides an unsigned letter from the FSM to retired
pay officials, dated 5 June 1985.  In this letter, the FSM provided a
mailing address for his retirement checks and the forms necessary to give
the applicant a limited power of attorney that would allow her to endorse
the retirement checks.

5.  A review of the Defense Finance and Accounting Service (DFAS) pay
record of the FSM reveals that on 9 December 2003 a portion of military
retired pay was redesignated a disability payment from the Department of
Veterans Affairs (VA).  Distribution and categorization of this payment
would be governed by VA polices and regulations.

6.  The FSM’s DFAS pay record also reveals that his SBP coverage is
“Spouse” and SBP beneficiaries are designated by category, not by name.  As
a result, the lawful beneficiary of the FSM’s SBP is his current wife.  In
order for the applicant to be the lawful beneficiary, the FSM’s beneficiary
designation would have to be “Former Spouse”.

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), dated 8 September 1982, established SBP for former military
spouses.  This law also decreed that the State courts could treat military
retired pay as community property in divorce cases if they so chose.

8.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect
SBP coverage for a former spouse under spouse coverage provisions vice
insurable interest provisions, and Public Law 99-661, dated 14 November
1986, permitted divorce courts to order SBP coverage in those cases where
the retiree had elected spouse coverage at retirement or was still on
active duty and had not yet made an SBP election.

9.  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.  The applicant’s contention that an injustice has been served on her as
a result of a portion of the FSM’s retired pay being designated disability
pay, the distribution of which is controlled by VA policy and regulations
was carefully considered.  However, although it appears the intent of the
original ratified MSA was for her to receive all military retired pay, the
entitlement to and distribution of VA disability pay is not within the
purview of this Board.  The applicant is advised to pursue this issue
through the appropriate State or Federal court.

2.  The evidence shows that an injustice has occurred in this case in
regard to the SBP issue.  However, no Board corrective action will be taken
because that action would cause another injustice by depriving the FSM’s
spouse of her property interest without due process.

3.  The record shows that the FSM failed to make a “Former Spouse” coverage
SBP election as was ordered by the applicant’s divorce decree.  As a
result, the law allowed the applicant one year to submit a written request
that a “Former Spouse” coverage election be deemed to have been made.
However, there is no evidence to show the applicant ever submitted such a
request within the time prescribed.

4.  The DFAS pay record confirms that the SBP election in force for the FSM
is “Spouse” coverage.  Based on this election, the FSM’s current wife is
the lawful beneficiary at this time.  Absent a statement from the FSM’s
current wife asserting that she agrees to renounce the SBP benefit in
perpetuity in favor of the applicant, no Board corrective action will be
taken because that action would cause another injustice by depriving the
FSM’s spouse of property interest without due process.

5.  The limitation of this Board to act on these issues is a product of the
governing law and is in no way a reflection of the merits of the case.  It
appears clear that the FSM failed to comply with the MSA he agreed to at
the time of the divorce; however, absent the current spouse’s consent or a
new order, from a court having jurisdiction over the parties and subject
matter, requiring the FSM’s compliance with the original court ratified
MSA, this Board is unable to act on a military records correction on the
issues raised.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MDM___  _LDS___  _LH_____  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.





            _    MARK D. MANNING___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102030                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/                                |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]