RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR2004104791


      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          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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:

The applicant’s reconsideration request is outlined by her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant’s request
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.  Counsel states, in effect, that the FSM was required by a German court
order to elect the applicant as his former spouse to receive his SBP
annuity and he failed to take the necessary steps to comply with this court
order.  Counsel states that the law governing deemed SBP elections based on
court orders (Title 10 of United States Code, section 1450) does not use
the word original in establishing the one year request period.  As a
result, counsel contends that the one year period for making a deemed
election request should not begin until the final court order that is not
open for appeal is rendered.  Counsel contends that there would always be a
danger of injustice if the deemed election request is made based on the
original court order that can be overruled by an appeals court many months
or even years later.  Based on this logic, counsel claims the relevant
court order in this case should be the 7th Civil Court of Appeal in
Bamberg, Gemany, dated 22 November 1996, which would have made the
applicant’s request timely.

3.  Counsel provides a self-authored letter in support of this request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002081520, on 20 February 2003.

2.  The record shows the applicant and FSM were separated in 1989.  At that
time, the FSM agreed to maintain SBP coverage for the applicant.   In 1991,
the divorce decree issued by the State of Louisiana did not incorporate the

1989 separation agreement and did not mention SBP coverage.
3.  As outlined by the Board in its original decisional documents, a
default decree was issued by the Local Court, Family Court, Wuerzberg,
Germany on
7 November 1994, which ordered the applicant to continue SBP coverage for
the applicant.

4.  On 2 August 1995, although court jurisdictional issues were raised, the
Local Court, Wuerzberg Germany, verified that both parties agreed the 1989
agreement between the FSM and applicant regarding SBP coverage was binding
and that steps would be taken to ensure the applicant remained the FSM’s
SBP beneficiary.  On 22 November 1996, the Bamberg, Germany, 7th Civil
Court of Appeal validated the 7 November 1994 decision of the first court.


5.  The Board finally concluded that it was never the intent of the FSM to
provide the applicant SBP coverage and that the applicant should have made
her deemed SBP election request within one year of the 1995 agreement
between her and the FSM, as was noted and supported by the German court
decision of
2 August 1995.  Further, the Board found that it appeared it was never the
intent of the FSM to provide the applicant SBP coverage.  This is made
clear by the fact he made his wife at the time the beneficiary of his SBP
annuity and as his widow, she is currently receiving the SBP annuity as the
lawful beneficiary.

6.  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.  Counsel’s contention that in this case, the one year time limit on
requesting a deemed SBP election should not have begun until the final
decision of the
7th Civil Court of Appeal was rendered on 22 November 1996 was carefully
considered.  However, while counsel’s argument has logic, it is not the
overriding principle in this case.
2.  The clear intent of the governing law is to provide a former spouse an
alternative means of gaining SBP coverage once an agreement is entered into
and validated by a court if the service member involved fails to comply
with the terms of the agreement.

3.  In this case, it is clear that subsequent to their 1991 divorce, the
1989 agreement regarding SBP coverage between the applicant and FSM was
ratified by both the 7 November 1994 and 2 August 1995 German court
actions.

4.  Given the SBP coverage election was a matter of contention between the
applicant and FSM, as evidenced by the court actions taken, it appears it
would have been logical for the applicant to have taken the necessary steps
to request a deemed SBP coverage election within one year of the SBP
coverage agreement being validated by the German courts.

5.  Further, there are equity considerations that would normally be
entertained in this case given the FSM clearly agreed to provide the
applicant SBP coverage after their divorce.  However, the evidence of
record confirms that FSM’s wife at the time of his death is now receiving
the SBP benefit in question and is the lawful beneficiary.

6.  Absent a statement from the FSM’s widow asserting that she agrees to
renounce payment of the SBP annuity 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.

7.  During the original consideration of this case, the legal staff found
the applicant’s attempt to enforce the provisions of the German court
orders did not occur within the one-year period provided by law, and
concluded that the findings and conclusions of the Board were consistent
with the relevant SBP laws, regulations and policies.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MDM_   ___JED_    __JBG__  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 to amend the decision of
the ABCMR set forth in Docket Number AR2002081520, dated 20 February 2003.




            ____Mark D. Manning____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104791                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/07                              |
|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.                      |                                        |


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