RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            9 November 2004
      DOCKET NUMBER:    AR2004102640


      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 Survivor Benefit Plan (SBP)
annuity election made by her deceased ex-spouse, a former service member
(FSM), be changed to former spouse coverage and that she be provided a SBP
annuity accordingly.

2.  The applicant states, in effect, that the FSM told his military unit
clerk that he wanted her to receive his SBP annuity before his death.

3.  The applicant provides a self authored statement and third-party
statement from the FSM’s military unit clerk in support of her application.


CONSIDERATION OF EVIDENCE:

1. The FSM’s record shows his date of birth was 11 November 1942.  On 21
October 1967 he married the applicant.

2.  On 7 October 1985, the FSM was issued a Notification of Eligibility for
Retired Pay at Age 60 (Twenty-Year Letter) by the National Guard Bureau
(NGB).  This letter confirms the applicant completed the required years of
service and would be eligible for retired pay upon application at age 60.
At the time, he completed a SBP Election Certificate (DD Form 1883).  In
Section II (Marital, Dependency and Election Status) of this document, the
applicant elected Option C (Immediate Coverage), Full Spouse and Children
SBP coverage.

3.  On 19 November 1991, the FSM and applicant were divorced.  The divorce
decree provided by the applicant contains no language providing for
continued SBP coverage.  Further, the record shows that neither the FSM nor
the applicant took any action to request a change to the FSM’s SBP election
to former spouse coverage within a year of the divorce decree being issued,
as is required by law.

4.  Orders Number 76-126, dated 22 April 1993, issued by the Tennessee Army
National Guard (ARNG) directed the applicant’s honorable discharge from the
ARNG and transfer to the United States Army Reserve, Retired Reserve,
effective 31 March 1993.

5.  On 25 March 1995, the FSM died at the age of 52, prior to applying for
retired pay at age 60.
6.  The applicant provides a third-party statement from the FSM’s military
unit clerk.  This individual claims that he discussed the FSM’s SBP
election with the FSM at the time he retired in 1993.  He claims the FSM
intended for the applicant, his former spouse, to receive the SBP annuity
given they had been married for 26 years.  However, there is no indication
that any formal SBP election action was taken at the time.

7.  On 22 February 2002, the Director of Personnel Actions and Services,
United States Army Reserve Personnel Command (ARPERSCOM), in response to a
Congressional Inquiry made on behalf of the applicant indicated that the
FSM’s Official Military Personnel File failed to produce any documents to
substantiate the applicant’s claim of entitlement to a SBP annuity based on
the death of the FSM.

8.  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.

9.  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.

10.  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 evidence of record shows that the applicant and the FSM were
divorced on 19 November 1991, after all the laws supporting the USFSPA were
enacted.  At the time, their divorce decree contained no language regarding
continued SBP coverage for the applicant as a former spouse.
.2.  Notwithstanding the statement provided by the FSM’s military unit
clerk, the evidence of record contains no documentation or information
showing that the FSM intended to provide the applicant SBP coverage as a
former spouse subsequent to their divorce in 1991.

3.  By law, the FSM had one year to notify Army officials of his divorce
and to make a former spouse SBP coverage election and applicant had one
year to submit a written request that a former spouse coverage election be
deemed to have been made.  However, there is no evidence indicating that
either the FSM or applicant took any action to make this former spouse SBP
coverage election within the required timeframe.

4.  Absent some specific evidence of record that would confirm it was the
FSM’s clear intent to provide former spouse SBP coverage to the applicant
subsequent to their divorce, there is an insufficient evidentiary basis to
support granting the requested relief at this late date.

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                 |AR2004102640                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/DD                              |
|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.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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