RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050004653


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 that the records of her deceased former spouse,
a former service member (FSM), be corrected to show he changed his Survivor
Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states, in a letter from her son, that the FSM paid SBP
premiums until he died.  The FSM was never aware a formal correction needed
to be made from "spouse" to "former spouse."  They were divorced in 1986
and the divorce decree noted the SBP would be awarded to her.  In the 19
years that followed, neither of them remarried.  Over the last two years of
the FSM's long-term terminal illness, she relocated from Maryland to Texas
and became his primary in-residence care provider.

3.  The applicant provides the judgment of divorce, with a settlement
agreement incorporated into it, and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the FSM was appointed a warrant officer
and entered active duty on 28 November 1966.  On 19 July 1982, he completed
a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated
he elected to participate in the SBP for spouse and children coverage, full
base amount.  He retired on 1 August 1982.

2.  The FSM and the applicant divorced on 25 March 1985.  A settlement
agreement dated 16 May 1986 stated in pertinent part, "The plaintiff (the
FSM) shall execute all the required documents to ensure that (the
applicant) is named as the beneficiary in the said Survivors Benefit
Pension as a former spouse or as an insurable interest as appropriate to
satisfy the Federal Act authorizing such benefits."

3.  The FSM died on 23 February 2005.  His death certificate shows his
marital status as divorced.  Records at the Defense Finance and Accounting
Service show he continued to pay SBP premiums until he died and that no one
is currently receiving the SBP annuity.

4.  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.

5.  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.  Former spouse costs were paid under the
insurable interest provisions.

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

7.  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.

8.  Public Law 99-145, dated 8 November 1985 but effective 1 March 1986,
permitted retirees to elect SBP coverage for a former spouse under spouse
coverage provisions vice insurable interest provisions.

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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant divorced on 25 March 1985.  A settlement
agreement dated 16 May 1986 awarded the applicant the SBP.

2.  The FSM did not execute the required documents to change his SBP
coverage to former spouse (and children) coverage as required by Federal
law and as agreed upon in the settlement agreement, and the applicant did
not make a request for a deemed election.

3.  Nevertheless, the available evidence shows the FSM continued to pay
spouse SBP premiums until he died in February 2005.  His death certificate
indicated his marital status as divorced and no one is currently receiving
the annuity.  It is  reasonable to presume his continuing to pay [spouse]
SBP premiums for almost 20 years after the divorce indicated his intention
to provide the SBP for the applicant.

4.  It appears some back SBP premiums may be owed to the Government.  The
FSM and the applicant divorced on 25 March 1985.  Former spouse coverage
was available at that time; however, costs were paid under the insurable
interest provisions (which are more expensive than spouse costs).  It was
not until           1 March 1986 that retirees were permitted to elect SBP
coverage for a former spouse under spouse coverage provisions.
BOARD VOTE:

__rtd___  __jbg___  __swf___  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 made a written request to change his SBP coverage
from spouse and children coverage to former spouse and children coverage on
  1 April 1985 and that his request was received and processed by the
appropriate office in a timely manner;

     b.  showing the FSM elected SBP coverage for former spouse under
spouse coverage provisions vice insurable interest provisions on 1 March
1986;

     c.  paying to the applicant the annuity retroactive to the date of the
FSM's death; and

     d.  advising the applicant the Defense Finance and Accounting Service
will be instructed to collect any SBP costs due.




                                  __Richard T. Dunbar___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004653                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|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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