RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050002563


      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 be corrected to
show she made a deemed election of the Survivor Benefit Plan (SBP) of her
former spouse, a former service member (FSM), in a timely manner.

2.  The applicant states she sent the separation agreement and divorce
decree to the Defense Finance and Accounting Service.  She was first told
it was too late since her divorce was in 1994 (she divorced in 2004).  Then
she was told it was denied because nothing was said about the SBP in the
divorce decree (it did).

3.  The applicant provides a copy of the divorce decree and separation
agreement and a copy of her letter dated 10 July 2004.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 13 January 1978.  He and the
applicant married on 15 April 1994.  He completed a DD Form 2656 (Data for
Payment of Retired Personnel) on 7 December 1997.  He indicated he elected
to participate in the SBP for spouse only coverage, full base amount.  He
retired on 1 February 1998.

2.  The FSM and the applicant separated on 1 May 2001.  A Stipulation and
Property Settlement Agreement dated 21 July 2001 stated, in pertinent part,
"The wife shall remain as the beneficiary on the husband's Survivor Benefit
Plan and…"

3.  The FSM and the applicant divorced on 4 June 2004.  The divorce decree
stated, in pertinent part, "It is further ORDERED that the Separation
Agreement dated July 21, 2001, be ratified, affirmed and incorporated into
this decree."

4.  In an unaddressed statement dated 10 July 2004, the applicant stated,
"I want to inform you, that I will continue SBP coverage, as a former
spouse.  I have enclosed the separation agreement (see page 3 for SBP
coverage), and also the final divorce decree."

5.  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.

6.  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.
7.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

8.  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.

9.  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 Stipulation and Property Settlement Agreement dated July 2001 shows
the FSM agreed to retain the applicant as his SBP beneficiary.  This
agreement was incorporated into the divorce decree dated 4 June 2004.

2.  Although the applicant's letter dated 10 July 2004 does not contain an
address, it clearly indicated she was making a request for a deemed
election of the SBP and the Board presumes she intended the letter to reach
the proper Army agency.  The Board accepts this letter as sufficient to
show she made a request for a deemed election of the SBP within one year of
the divorce as required by law.

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
showing the applicant made a written request for a deemed election of the
FSM's SBP within one year of the divorce as required by law and her request
was accepted by the appropriate office and processed in a timely manner.




                                  __Stanley Kelley______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002563                           |
|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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