RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:   AR2004102961


      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 records of her deceased
former spouse, a former service member (FSM), be corrected to show he
changed his Survivor Benefit Plan (SBP) election to former spouse coverage.


2.  The applicant states, in effect, that she is the surviving ex-spouse of
the FSM and is entitled to receive a SBP annuity as provided for in their
divorce agreement after 39 years of marriage.  The applicant further
indicates that while the FSM registered his new wife as a dependent, she is
unaware of the FSM ever designated his now deceased new wife as the
recipient of his SBP annuity.

3.  The applicant provides the FSM’s separation document (DD Form 214) and
retirement orders, their marriage license and divorce decree, the FSM’s
death certificate and a letter of support from the FSM’s son in support of
her application.

CONSIDERATION OF EVIDENCE:

1.  On 30 April 1960, the FSM was released from active duty for the purpose
of retirement after completing 28 years, 7 months, and 12 days of active
military service.  On 1 May 1960, the FSM was placed on the Retired List in
the rank and pay grade of master sergeant/E-7.

2.  The applicant and FSM were married 15 December 1945 and divorced on
8 August 1983.  No marital settlement agreement was referred to in the
final court judgment.  The applicant does provide attorney’s letters dated
between 25 January and 13 June 1984, which indicate a marital property
settlement agreement that included former spouse SBP coverage was being
negotiated by the FSM and applicant.  However, the applicant provided no
final court ratified marital settlement agreement.

3.  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.

4.  On 14 December 2003, the FSM died.  The FSM’s son provides a letter
that indicates that subsequent to the death of his third wife, he took over
the care of his father.  He further indicates that in conversations he had
with his father in the fall of 1999, the FSM expressed his desire to
fulfill his commitment to designate his former wife, the applicant, as the
beneficiary of his SBP.
5.  A review of the FSM’s retired pay record maintained by Defense Finance
and Accounting Service (DFAS), Cleveland, Ohio, shows that his SBP coverage
election was Spouse Only and that his third wife was listed as the
beneficiary.  It further shows that the FSM continued to pay SBP premiums
through his death.

6.  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.

7.  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 8 August 1983.  At the time, their divorce decree contained no
language regarding continued SBP coverage for the applicant as a former
spouse.

2.  Absent a specific marital settlement agreement ratified by the court,
it is unclear that entitlement to continued SBP protection as a former
spouse was part of the original divorce settlement between the applicant
and FSM.

3.  Notwithstanding the statement from the FSM’s son, there is no
documentary evidence of record that would confirm it was ever the intent of
the FSM to provide former spouse SBP coverage for the applicant.
Conversely, his protection of his third wife as a current spouse would
indicate it was never his intent to provide SBP protection for the
applicant as a former spouse.

4.  It is clear the FSM’s SBP eligible spouse predeceased him and as a
result equity considerations based on the length of the marriage between
the applicant and FSM may have been appropriate in this case if there had
been a court ratified marital settlement agreement entered into at the time
of their divorce that addressed former spouse SBP coverage.
6.  However, no such agreement was provided and the attorney letters
submitted do not constitute a court ratified marital settlement agreement.
Therefore, there is an insufficient evidentiary basis upon which to support
granting the requested relief.

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                 |AR2004102961                            |
|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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