RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050002749


      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 she made
a valid deemed election for the Survivor Benefit Plan (SBP).

2.  The applicant states the divorce decree orders her to be treated as the
surviving spouse.

3.  The applicant provides the divorce decree; the Family Court parenting
plan; the marital settlement and separation agreement; the FSM's death
certificate; a DD Form 2293 (Application for Former Spouse Payments from
Retired Pay);   five letters dated 18 April 2001, 25 September 2001, 13
November 2001,          18 February 2004, and 19 April 2004 from her
attorney; and a letter dated 1 April 2004 from the Defense Finance and
Accounting Service (DFAS).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states the FSM and the applicant were married for 25 years and
divorced on 27 February 2001.  The judgment awarded the applicant 50
percent of the FSM's Army pension and ordered her to be treated as a
surviving spouse.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the FSM enlisted in the Regular Army on
6 May 1969.  He and the applicant married in October 1976.

2.  The FSM retired on 1 February 1989.  At that time he elected to
participate in the SBP for spouse only coverage.  The applicant was also
listed as the beneficiary for unpaid retired pay.

3.  The FSM and the applicant divorced on 27 February 2001.  The marital
settlement and separation agreement stated in pertinent part, "The parties
agree that Wife shall receive fifty percent (50%) of Husband's military
retirement and fifty percent (50%) of Husband's Veteran's Affairs benefits.
 Wife shall be responsible for preparation of a qualified domestic
relations order to effectuate this provision.  Husband agrees to give full
cooperation to Wife in providing her with necessary information, i.e., plan
administrator name, telephone number, and address.  It is the intent of
this provision that Wife shall be treated as a surviving spouse should
Husband die prior to Wife receiving her interest."

4.  The divorce decree is dated 27 February 2001.  The decree states all
property and debt was divided by the separation agreement, which was found
to be not unconscionable and was incorporated in and made part of the
decree.  Parties were ordered to perform the terms thereof.

5.  By letter to DFAS dated 18 April 2001, counsel for the applicant made a
deemed election for the SBP on behalf of the applicant.  He noted the
judgment awarded the applicant 50 percent of the FSM's military retirement.
 He noted [the marital settlement and separation agreement] stated, "(i)t
is the intent of this provision that Wife shall be treated as a surviving
spouse should Husband die prior to receiving her interest."  He also
stated, "Please forward any forms needed to secure [the applicant's] 50%
interest should [the FSM] predecease her…"

6.  Counsel for the applicant made the same request for a deemed election
by letters to DFAS dated 25 September 2001, 13 November 2001, and 18
February 2004.  The 18 February 2004 letter indicated the applicant had
received her       50 percent share of the FSM's retired pay until the
FSM's death.

7.  The FSM died on 25 December 2003.  The death certificate shows his
marital status as divorced.  DFAS stated no one is currently receiving the
annuity.

8.  By letter dated 1 April 2004, DFAS informed the counsel for the
applicant they found the election for former spouse coverage was not a
court order within the final divorce decree.  By letter dated 19 April
2004, counsel for the applicant informed DFAS it was a court order within
the final divorce decree.

9.  On 12 September 2005, DFAS informed the Board analyst they had stopped
the FSM's SBP in December 2001 per his request.

10.  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.  The annuity is 55
percent of the member's retired pay or designated reduced base amount.

11.  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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.

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

13.  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.

14.  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.  Counsel for the applicant made a request for a deemed election for the
SBP within one year of the divorce, and it appears the marital settlement
and separation agreement was incorporated into the final divorce decree.
However, it is not clear whether the marital settlement and separation
agreement referred to the SBP.

2.  The separation agreement awarded the applicant 50 percent of the FSM's
retired pay and stated she would be treated as a surviving spouse should
the FSM die prior to her receiving her interest.  Since her counsel's 18
February 2004 letter to DFAS indicated she received her 50 percent share of
the FSM's retired pay until the FSM's death, it appears he did not die
"prior to her receiving her interest."

3.  In addition, counsel for the applicant, in his 18 April 2001 letter to
DFAS, requested "any forms needed to secure [the applicant's] 50%
interest…"  An SBP annuity is 55 percent of the member's retired pay or
designated reduced amount. However, he requested her "50% interest," which
was the amount of the FSM's military pension she was awarded by the divorce
decree.

4.  The wording of the marital settlement and separation agreement is too
ambiguous to ascertain whether it was referring to the SBP or to retaining
the applicant as the FSM's beneficiary for unpaid retired pay, or to
something else.  In the absence of a clarifying order from the court, there
is insufficient evidence on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  _jtm____  _rld____  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 for correction of the
records of the individual concerned.




                                  __Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002749                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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