RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050004207


      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. David S. Griffin              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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
elected former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that she and the FSM were married  on
14 December 1956 and that the FSM was injured in January 1959 in an
accident that resulted in three years hospitalization.  The applicant goes
on to chronicle her turbulent life with the FSM.  She states they were
separated in 1991 and in 1992 they were divorced.  The applicant states
that they did not know that a former spouse election had to be made for the
SBP.

3.  The applicant provides a copy of:

      a.  the FSM's DD 214 (Armed Forces of the United States Report of
Transfer or Discharge) with an effective date of 10 October 1961 that shows
the FSM retired on permanent disability on 10 October 1961;

      b.  the applicant and the FSM's divorce decree that shows they were
divorced on 18 August 1992.  The divorce decree does not mention any award
of a portion of the FSM's retirement pay or the SBP;

      c.  the FSM's Retiree Account Statement, dated 2 December 2003, that
shows the FSM  had SBP coverage for spouse only and was paying premiums at
the time of his death;

      d.  the FSM's Medical Examiner's Certificate of Death, North
Carolina, that shows the FSM was divorced at the time of his death on 15
January 2004; and

      e.  statements from the applicant's children, who state that their
father intentionally continued to have SBP premiums deducted from his
retired pay so that the applicant would receive benefits.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military records show that he was inducted on 24 September
1958.  On 1 January 1959, the applicant suffered an accidental gunshot
wound to his right leg that caused him to be hospitalized until May 1961.

2.  On 17 August 1961, a Physical Evaluation Board (PEB) found the
applicant unfit to perform the duties of his office, rank, or grade by
reason of physical disability.  On 10 October 1961, the applicant was
placed on the retired list with a disability rating of 40 percent.  The
applicant had completed 3 years and 17 days of active service that was
characterized as honorable. The highest rank held by the FSM was private
first class/pay grade E-3.

3.  On 18 August 1992, the applicant and the FSM were divorced.

4.  On 15 January 2004, the FSM died.  The death certificate showed that
the FSM was divorced.

5.  According to the Defense Finance and Accounting Service (DFAS) there
are no SBP payments being paid.  DFAS confirmed that the FSM had continued
to pay SBP premiums at the spouse only rate until his death.

6.  Public Law 92-245, the SBP, enacted 21 September 1972, provided that
military members on active duty could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection
Act, dated 8 September 1982, established SBP for former spouses of retiring
members.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that it was the FSM's intention to continue to
provide former spouse coverage under the SBP.

2.  Although the divorce decree does not address the SBP, the FSM continued
to pay premiums at the spouse only rate until his death in January 2004.
The death certificate showed that the FSM was divorced and there is no
evidence that he ever remarried.

3.  Although the FSM never notified DFAS to change his SBP coverage to
former spouse and the applicant never requested a deemed election, the
Board concluded that the FSM’s continued payment of spouse only premiums
showed his intent to provide survivor benefits for his former spouse.

4.  In view of the foregoing, it would be in the interest of justice to
correct the applicant’s records to show that he elected former spouse
coverage under the SBP on 18 August 1992, the date of his divorce.

BOARD VOTE:

___bpi___  ____eem  ____dws_  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 that the FSM elected former spouse coverage under the SBP
on 18 August 1992, the date of his divorce; and

      b.  that the applicant be paid an annuity based upon the FSM’s
election for former spouse coverage retroactive to 15 January 2004, the
date of his death.





                                  ________Bernard P. Ingold_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004207                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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