RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 April 2004
      DOCKET NUMBER:   AR2004104787


      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:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Ms. Jennifer L. Prater            |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 father, 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 that her mother (the FSM's former spouse) was
married to the FSM for most of his military career.  They first married in
an Army chapel in November 1958 and later in a German church in November
1959.  Because her mother did not have a certificate documenting the Army
marriage, she has been denied benefits such as an identification card.  The
divorce decree awarded her mother the SBP.  The law states that a court
order can be used by the former spouse to deem an election.  She has found
proof that her mother's attorney contacted the Army shortly following the
divorce.  Her mother was assured that her lawyer, with 20 plus years
experience in this particular type of divorce, had taken care of all
necessary correspondence to fulfill the details of their divorce decree.
The FSM subsequently married the woman he left her mother for, meanwhile
continuing to pay the SBP premiums.  When the FSM's second wife died in
1996, he requested that his former spouse be the beneficiary of his SBP.

3.  The applicant provides a letter from the U. S. Army Finance and
Accounting Center (USAFAC) dated 8 April 1987; a certificate of marriage;
her parents' divorce decree and page 8 only of the property settlement
agreement; a letter from the FSM to USAFAC dated 22 May 1996; the death
certificate; a letter from Fort Stewart, GA to the former spouse dated 4
February 1998; an undated letter from the Defense Finance and Accounting
Service (DFAS) to the former spouse explaining former spouse SBP coverage;
and an annuity claim package.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on        14 November 1987, the first anniversary of her parents' divorce.
The application submitted in this case is dated 28 January 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM enlisted in the Regular Army on 21 February 1956.  He and the
applicant's mother married on 7 November 1959 in a German church.  The FSM
retired on 1 November 1978.  At that time, he elected to participate in the
SBP for spouse only coverage, reduced base amount.

4.  On 14 November 1986, the FSM and the applicant's mother divorced.  The
property settlement agreement was approved and incorporated in the final
judgment.  The property settlement agreement stated in pertinent part, "The
Husband hereby elects to designate the Wife as the beneficiary under his
Military Survivor Benefit Plan.  The Husband hereby agrees to execute all
necessary documentation in connection with this election and further agrees
to never, under any circumstances, change this election."

5.  On 8 April 1987, USAFAC sent a letter to the applicant's mother in
response to her request for direct payments from the FSM's retired pay.

6.  The FSM remarried on an unknown date.  His spouse from this marriage
died on 11 May 1996.  On 22 May 1996, the FSM sent a letter to DFAS
requesting SBP coverage for his spouse be discontinued and requesting if
there was an option to initiate new coverage or to transfer coverage for
his former spouse, the applicant's mother.

7.  The FSM died on 16 January 1998.

8.  On 6 April 2004, DFAS confirmed that the FSM did not continue to pay
SBP premiums after the death of his second spouse.

9.  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.

10.  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.

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

12.  Public Law 98-525, enacted 19 October 1984, provided that a former
spouse could request a deemed election within one year of the court order
requiring SBP to be established on the former spouse’s behalf provided the
member agreed to provide coverage.

13.  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.

14.  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.  There is no Government error in this case.  It appears the applicant's
mother (or her attorney) only requested direct payments from the FSM's
retired pay, most likely as a result of the property settlement agreement
also awarding her a portion of his retired pay.  It does not appear that a
request for a deemed election of the SBP was made.  While the law states
that a court order can be used by the former spouse to deem an election,
the law also requires that a written request for a deemed election be made.
 While providing the court order alone is sufficient to divide retired pay,
it is not considered a written request for a deemed election of the SBP.

2.  However, the Board concludes that as a matter of equity the applicant's
request should be granted.  It was Congress’s intent in establishing the
SBP to provide for those spouses who supported the military member for the
majority of his or her military career.  The applicant's mother was married
to the FSM for the majority of his military career.  The court awarded the
applicant's mother the SBP in the divorce decree.  The FSM inquired about
making her his SBP beneficiary
after his wife died.  There is no claimant for his SBP annuity based on his
elected reduced base amount of $300.00.

BOARD VOTE:

__tdh___  __jlp___  __lf____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected by showing he made a written
request to change his SBP coverage to former spouse coverage on 1 December
1986.

2.  That the applicant be advised the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.

3.  That the FSM's former spouse, the applicant's mother, be paid an
annuity retroactive to 17 January 1998, the day after his death.




            __Thomas D. Howard____
                    CHAIRPERSON





                                    INDEX

|CASE ID                 |AR2004104787                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040420                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |