RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 March 2005
      DOCKET NUMBER:  AR2004106747


      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. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 through counsel, in effect, that the Survivor
Benefit Plan (SBP) election made by her ex-spouse, a former service member
(FSM), be changed to former spouse coverage.

2.  The applicant’s arguments and evidence are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be provided former
spouse SBP coverage as intended by the property agreement contained in the
divorce decree pertaining to the applicant and FSM.

2.  Counsel states, in effect, that the original divorce decree and the
most recent court ruling make it very clear that she, was awarded SBP
beneficiary status as a former spouse.  She claims that she has been paying
the benefits since July 29, 1984, and only recently discovered that the
official records of her former husband were in error.

3.  Counsel provides a copy of the Divorce Decree and Minute Entry
(Domestic Hearing Re Reinstate Wage Assignment), dated 11 December 2002, in
support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred in 1984.  The application submitted in this case was received
on
10 April 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 limitations 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’s record shows he entered active duty on 5 December 1952.  He
retired, in the rank and pay grade sergeant first class/E-7 (SFC/E-7), on
1 February 1973.  At the time, he elected SBP spouse coverage.

4.  On 27 July 1984, the FSM and the applicant were divorced.  At this
time, the FSM notified the Defense Finance and Accounting Service (DFAS) of
the divorce and made an election not to continue his SBP participation.
Sometime in 1997, DFAS learned the FSM was remarried and restarted his SBP
spouse coverage for his new wife.

5.  On 3 April 1997, the FSM was informed by DFAS that he owed $4,866.86 in
back premiums.  On 7 May 1997, the FSM applied to this Board and requested
cancellation of his participation in the SBP.  This request was supported
by the Army Retirement Services Office.

6.  On 19 May 1999, the Board recommended the FSM’s record be corrected to
show he declined to resume spouse coverage upon his remarriage on
17 December 1990 and that he be refunded any and all of the SBP debt that
had been previously collected.

7.  The applicant provides a divorce decree that confirms she and the FSM
were divorced on 27 July 1984.  This disposition of property and debts
ordered by the court includes a provision that stipulates the FSM’s
military retirement would be divided, with sixty-two and five tenths
percent (62.5 %) being paid to the FSM and thirty-seven and five tenths
percent (37.5%) being paid to the applicant.  It further stipulated that
$63.62 of the applicant’s share would be deducted to pay for survivor
benefits in the event of the FSM’s death.  She also alludes to a 2000 court
ruling on the subject and indicates this document was provided.  However, a
copy of this court document was not included with the application packet
that arrived at the Board for review.

8.  The applicant also provides a Minute Entry from the Arizona Superior
Court, Pima County, dated 11 December 2000.  This document indicates that
the applicant and FSM reached an agreement that (1) the FSM would pay the
applicant the difference between what the applicant received from the DFAS
and $450.00 per month within five days of receipt of his monthly retirement
check commencing on 1 January 2001; (2) that the FSM would pay the
applicant the sum of $3,000.00 as and for retirement arrearage at $50.00
per month without interest for the next five years; and (3) that the FSM
would pay the Spousal (sic) Benefit Protection Program so long as it is not
over $100.00 per month, this stipulation included a comment that counsel
needed further information regarding this  program.

9.  On 2 February 2005, the FSM was provided a copy of this application and
the supporting court documents in order to have the opportunity to present
any information and/or documentation he wished to be considered by the
Board.

10.  On 8 February 2005, the FSM prepared a letter of rebuttal, in which he
expressed his concerns regarding the intention of his former spouse, the
applicant, to correct his records without his approval.  The FSM stated
that he is not deceased or incompetent and has not provided the applicant
or her counsel a power of attorney to make corrections to his military
records.

11.  The FSM further claims that the 29 July 1984 decree of dissolution is
not sufficient to allow the applicant or her attorney to make corrections
to the existing military records. He further states the decree does not
allow her to designate a beneficiary (including herself).  He claims that
right is his alone.  He further states the Minute Entry from the Pima
County Superior Court, dated 12 November 2002 specifically states that he
shall pay for the SBP as long as it is not over $100.00 per month and
counsel needs further information regarding the status of the program.

12.  In his rebuttal statement, the FSM also indicates the original divorce
decree was modified, but not to the extent that would allow the applicant
or her representative to change her military records without his consent.
He states it is his understanding that the spouse SBP coverage he elected
stopped upon his divorce.  He further states he has not made a written
request to designate his former spouse as the beneficiary and he requests
that his former spouse’s application for correction of his records be
denied based on the lack of his consent.  He further requests that any
release of information be safeguarded under the provisions of the Privacy
Act of 1974.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection
Act (USFSPA), dated 8 September 1982, established SBP for former military
spouses.
14.  Title 10, U. S. Code, section 1448b3 (10 USC 1448b3) 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.

15.  Army Regulation 15-185 prescribes the policies and procedures for
correction of military records by the Secretary of the Army, acting through
the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3
provides guidance on who may apply.  It states, in pertinent part, that
depending on the circumstances, a child, spouse, parent or other close
relative, heir, or legal representative (such as a guardian or executor) of
the Soldier or FSM may be able to demonstrate a proper interest.
Applicants must send proof of proper interest with the application when
requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that an injustice has occurred in this case, and
while normally no Board corrective action would be taken that would cause
another injustice by depriving the FSM’s current spouse of property
interest, given the FSM’s current spouse waived her right to SBP protection
as part of the FSM’s 1997 application to this Board, it would now be
appropriate to correct the injustice done to the applicant due to the FSM’s
failure to comply with the property settlement terms contained in the 1984
divorce decree.

2.  The intent of the USFSPA is clearly to prevent injustices against
former spouses of the nature imposed on the applicant by the FSM in this
case.  Contrary to the FSM’s assertions, the applicant’s court directed
entitlement to continued SBP coverage demonstrates she has a proper
interest in this case and satisfies the regulatory criteria necessary to
establish her right to have this case considered by the Board.
3.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The law
also permits the former spouse concerned to request that a “Former Spouse”
SBP coverage election be deemed to have been made within one year of the
divorce.

4.  The evidence of record confirms the FSM agreed to continue SBP
protection for the applicant as part of the disposition of property
agreement he entered into in the 27 July 1984 divorce decree.  It is also
evident that he immediately violated this agreement by contacting DFAS and
informing them of the divorce and of his election not to continue his SBP
participation subsequent to the divorce.

5.  The 11 December 2000 Minute Entry from the Arizona Superior Court, Pima
County stipulated that the FSM would pay for the SBP so long as it is not
over $100.00 per month and that counsel needed further information
regarding this program.  While limiting the amount of money the FSM is
required to pay, this agreement reinforces the original court agreement
that the FSM would continue SBP protection for the applicant as a “Former
Spouse”.

6.  It is clear the FSM never intended to comply with his agreement to
continue SBP protection for the applicant, as ordered in the original
divorce decree of 1984.  It is further evident that the applicant was not
aware of her option to make a deemed election under the provisions of 10
USC 1448(b)3.

7.  Given the FSM’s agreement to the court-directed continued SBP
protection for the applicant as a “Former Spouse” and given the applicant
was married to the FSM for the majority of his military career, it would be
appropriate and serve the interest of justice, compassion and equity to
grant the requested relief.

8.  In view of the facts of this case, the record should be corrected to
show the applicant’s request that a “Former Spouse” SBP election be deemed
to have been made by the FSM was approved in a timely manner within one
year of the divorce, and that this coverage was provided under the terms of
the 1984 divorce agreement, as reinforced in the 11 December 2000 Minute
Entry from the Arizona Superior Court, Pima County.
BOARD VOTE:

___AU __  __WTM__  __RLD__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL 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.  As a result, the Board recommends
that all Department of the Army records of the FSM be corrected by showing
he changed his Survivor Benefit Plan election from “Spouse” to “Former
Spouse” on 28 July 1984, in accordance with terms of the 27 July 1984
divorce decree, as reinforced in the Minute Entry from the Arizona Superior
Court, Pima County on 11 December 2000.

2.  That the Defense Finance and Accounting Service collect back “Former
Spouse” Survivor Benefit Plan premiums from the FSM’s retired pay from the
date of the deemed election.




            ___Walter T. Morrison____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106747                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/01                              |
|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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