RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 October 2005
      DOCKET NUMBER:  AR20050000554


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 husband, a former service member (FSM), be corrected to reflect her
entitlement to Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, it was the FSM’s intention that she
continue to receive SBP coverage as a "Former Spouse."  She claims to have
had a verbal agreement with the FSM that he would continue to pay for SBP,
and she would remain the beneficiary in lieu of her receiving a portion of
his retirement pay.  The applicant further states that neither she nor the
FSM had any idea that they needed to do a deemed election for “Former
Spouse” coverage within one year of their divorce.

3.  The applicant provides the following documents in support of her
application: Self-Authored Letter; Daughter's Supporting Letter; Data For
Payment of Retired Army Personnel (DA Form 4240); Defense Finance and
Accounting Service (DFAS) Letter; Marriage Certificate; Verification For
Survivor Annuity (DD Form 2656-7); and Death Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 March 2001, the date of her divorce from the FSM.  The
application submitted in this case is dated 7 December 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 was released from active duty for the purpose
of length of service retirement on 31 May 1983.  At the time, he held the
rank of master sergeant (MSG), and had completed 21 years, 4 months, and
8 days of active military service.

4.  On 13 May 1983, during his retirement processing, the FSM completed a
Data for Payment of Retired Army Personnel (DA Form 4240).  In this
document, he elected “Spouse Only” SBP coverage at the full amount.

5.  On 1 March 2001, the FSM and the applicant were divorced.  The divorce
decree issued did not stipulate the applicant would receive SBP coverage as
a "Former Spouse."

6.  On 9 October 2004, the FSM died at the age of 65.

7.  On 9 November 2004, the applicant submitted an application Verification
for Survivor Annuity (DD Form 2656-7), requesting an SBP annuity.

8.  On 30 November 2004, a DFAS Retirement Services Coordinator replied to
the applicant’s SBP coverage inquiry.  This official informed the applicant
that in order to be eligible for "Former Spouse" coverage, her entitlement
to SBP had to be stipulated in the divorce decree, and a “Former Spouse”
deemed election would have to have been made within one year of the
divorce.

9.  DFAS records show that the FSM made an initial SBP election of “Spouse
Only” on 13 May 1983, and that he changed this election to “No Beneficiary,
Children Excluded” on 1 March 2001, which suspended SBP coverage on the
date of his divorce from the applicant.

10.  The applicant provides a third-party statement from her and the FSM's
daughter.  In this statement, the daughter states that after the FSM and
applicant were divorced, the FSM told her that he kept SBP coverage for the
applicant.  She claims the FSM’s intention was to ensure the applicant was
taken care of after 27 years of marriage even though they were no longer
married.

11.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect
SBP coverage for a former spouse under spouse coverage provisions vice
insurable interest provisions, and Public Law 99-661, dated 14 November
1986, permitted divorce courts to order SBP coverage in those cases where
the retiree had elected spouse coverage at retirement or was still on
active duty and had not yet made an SBP election.

12.  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.  SBP beneficiaries are designated by category
(“Spouse”, "Former Spouse", and "Children”) and not by name.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she and the FSM were unaware they had
only one year from the date of their divorce to change the SBP election to
“Former Spouse” was carefully considered.  However, the evidence of record
shows that SBP protection as a former spouse was not stipulated in the
divorce decree of the FSM and applicant.  As a result, a deemed “Former
Spouse” election was not an option available to the applicant.

2.  Notwithstanding the daughter’s statement, the record confirms the FSM
suspended SBP coverage upon his divorce on 1 March 2001.  This clearly
shows he had no intent to provide continued SBP protection for the
applicant as a former spouse.

3.  Given the absence of a stipulation in regard to continued SBP coverage
in the divorce decree, and based on the FSM’s immediate action to suspend
SBP coverage upon his divorce, there is an insufficient evidentiary basis
to support granting the requested relief.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 2001, the date of her divorce
from the FSM.  Therefore, the time for her to file a request for correction
of any error or injustice expired on 28 February 2004.  She failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV __  ___CVM_  __LMB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____James E. Vick______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000554                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/10/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1983/05/31                              |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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