RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050002391


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 corrected to show he
changed his Survivor Benefit Plan (SBP) election to former spouse coverage.

2.  The applicant states she and the FSM were married for 28 years.  They
had a friendly divorce and remained friends until he died.  He told her he
wanted her to have the SBP.  He also put his wish in the divorce papers.

3.  The applicant provides the FSM's DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) for the period ending 30
September 1970; the divorce decree; and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the FSM enlisted in the Regular Army on
      22 March 1955.  He and the applicant married on 16 January 1961.  He
retired on 1 October 1970.

2.  On an unknown date, the FSM enrolled in the SBP for spouse coverage.

3.  The FSM and the applicant divorced on 14 March 1989.  The Separation
Agreement, incorporated into the divorce decree, stated in pertinent part,
"Further, Husband agrees to pay FIFTY AND NO/100 DOLLARS per month for a
military survivor benefit plan by deduction from Husband's military
pension, said payment to continue until Husband dies or wife retires,
whichever occurs first, with the wife retaining the right upon her
retirement to choose the benefits she will receive in her best interest."

4.  The FSM died on 28 October 2004.  The death certificate shows his
marital status as divorced.

5.  Records at the Defense Finance and Accounting Service show the FSM
continued to pay SBP premiums until his death and no one is currently
getting the annuity.

6.  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.  It declared a 12-month
Open Season for those members who retired prior to enactment of the law.

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

8.  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.

9.  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.

10.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions
of the USFSPA relating to the SBP.  It permits a person, incident to a
proceeding of divorce, to elect to provide an annuity to a former spouse if
required by court order to do so.  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 after the date of
the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant divorced in 1989.  The Separation Agreement,
incorporated into the divorce decree, indicated the FSM agreed to maintain
the SBP for the applicant.  Although it appears neither the FSM nor the
applicant requested the SBP coverage be changed from spouse to former
spouse within the 1-year time limit provided for by law, the FSM did
continue to pay SBP premiums until he died.

2.  The available evidence shows the FSM did not remarry and no one is
currently receiving the SBP annuity.  It would therefore be equitable to
correct his records to show he requested former spouse coverage in a timely
manner and to pay the SBP annuity to the applicant.

BOARD VOTE:

__sk____  __jtm___  __rld___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 individual concerned be corrected by:

     a.  showing the FSM requested his SBP coverage be changed to former
spouse coverage on 1 April 1989 and that his request was received and
processed by the appropriate office in a timely manner; and

     b.  paying to the applicant the SBP annuity retroactive to the date of
the FSM's death.




                                  __Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002391                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|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.                      |                                        |


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