RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        DECEMBER 9, 2004
      DOCKET NUMBER:  AR2004103078


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 changed to show that he
changed his Survivor Benefit Plan (SBP) election from “spouse” to “former
spouse.”

2.  The applicant states that it appears that SBP payments are being made
to the FSM’s second wife and that, in view of her Judgment for Absolute
Divorce, she should be receiving the payments.  She states that a check was
mailed to her address in the name of the FSM’s second wife and that she
does not know the reason that the check was issued.  She states that if the
reason that the check was issued involves SBP then the check should have
been issued in her name.

3.  The applicant provides in support of her application, a copy of the
FSM’s Certificate of Death; a copy of her Judgment for Absolute Divorce; a
copy of a check issued by the Defense Finance and Accounting Service,
Cleveland Center, addressed in the name of the FSM’s second wife; a copy of
the FSM’s separation orders; a copy of the orders placing the FSM on the
Retired List; a copy of her United States Uniformed Services Identification
and Privilege Card; a copy of a SBP Annuitant Account Statement mailed to
her address in the name of the FSM’s second wife; and a copy of a letter
from DFAS dated 15 December 2003, informing the FSM’s second wife to
complete a Certificate of Eligibility.

CONSIDERATION OF EVIDENCE:

1.  After completing 2 years and 23 days of service in the District of
Columbia Army National Guard (DCARNG), he enlisted in the Regular Army on
16 February 1961, in the pay grade of E-2.  He remained on active duty
through a series of continuous reenlistments.  He retired on 30 September
1980.  At that time, he elected to participate in the SBP for spouse and
children coverage, full base amount.

2.  The FSM and the applicant divorced on 13 December 1984.  The provided
portion of the Judgment for Absolute Divorce states in pertinent part,
"ordered, that the military pension of the Defendant be found to be marital
property; and it is further ordered that the Plaintiff’s rights in the
Defendant’s military pension, as well as other benefits, be reserved unto
her.”





3.  On an unknown date the FSM remarried.  He died on 3 February 2003 and
his Certificate of Death shows his cause of death as “Cardio Respiratory
Failure.”

4.  Annuitant Account Statement for the period covering 12 December 2003
through 2 January 2004, shows that the FSM’s current spouse is receiving
his SBP annuity.

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

6.  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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.  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.

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

8.  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.

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.  Any such election
must be written, signed by the person making the 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 Board has carefully considered the portion of the Judgment of
Absolute Divorce provided by the applicant; however, it cannot be
determined from the wording of the applicable portion that the court
awarded her the SBP, as the SBP is not specifically mentioned.

2.  Since the FSM died with spouse coverage in effect, his legal spouse at
the time of his death is the lawful beneficiary of his SBP.

3.  Whether it was the FSM’s intent to obey the divorce decree’s order or
not, attorneys for the applicant should have known that federal law clearly
required that the FSM make a written application to the Army to have his
SBP election changed from “spouse” to “former spouse.”  If he failed or
refused to do so, federal law clearly states that the former spouse
concerned may make a written request that such an election be deemed to
have been made.  The Judgment for Absolute Divorce as written does not
fulfill the requirement of the law.  The law also 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. In this case, the law’s one-year time limit to
request a deemed election expired on 12 December 1985.  The available
evidence fails to show that she ever provided the divorce decree to the Pay
Center.

4.  Even though there is no evidence of government administrative error, in
view of the circumstances of the applicant’s case the Board ordinarily
would consider granting her relief.  However, the lawful beneficiary of the
FSM’s SBP is currently drawing the SBP annuity.  Absent a statement from
the FSM’s second spouse asserting that she agrees to renounce payment of
the SBP annuity in perpetuity in favor of the applicant, the Board will not
take any action to prevent the lawful beneficiary from receiving those
benefits.  To do so would constitute an unconstitutional taking without due
process of law.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mm_____  jds _____  mjf  _____  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.





                                  ____Melvin H. Meyer___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103078                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041209                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000.0000/SBP                       |
|2.  350                 |137.0400.0000/CHANGE IN ELECTIONI       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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