RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050004710


      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. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 former spouse, a former
service member (FSM), be corrected to show he elected to participate in the
Survivor Benefit Plan (SBP) for former spouse coverage.

2.  The applicant states their divorce was final in February 2003.  Neither
her lawyer nor the FSM told her about the requirement to make a request for
a deemed election within one year of the divorce.  The FSM testified in
court in May 2004 that he had put her down as the beneficiary, but she
found out later he put his new wife's name down as the beneficiary.

3.  The applicant provides the divorce decree, an Order Sustaining
Objections to Commissioner's Report, and their marriage certificate with
English translation.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 22 January 1980.  He and the
applicant married on 31 July 1984.

2.  The FSM and the applicant divorced on 12 February 2003.  The Order and
Decree states in pertinent part, "The Petitioner (i.e., the FSM) shall
enroll in the Survivor's Benefit Plan naming the Respondent (i.e., the
applicant) as beneficiary.  The Respondent shall be responsible for the
cost of the monthly premium if she elects to take this benefit."

3.  Records at the Defense Finance and Accounting Service (DFAS) show the
FSM remarried on 22 July 2003.

4.  On 20 August 2003, the FSM completed a DD Form 2656 (Data for Payment
of Retired Personnel) and elected to participate in the SBP for spouse and
children coverage, full base amount.  He retired on 1 February 2004.

5.  By letter dated 1 November 2004, the applicant's lawyer made a request
for a deemed election of the SBP.

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.

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.

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.  When the FSM and the applicant divorced on 12 February 2003, the
divorce decree stated in pertinent part that the FSM would enroll in the
SBP and name the applicant as the beneficiary.

2.  The FSM remarried on 22 July 2003.  He retired on 1 February 2004.
However, contrary to the order of the court, he elected to participate in
the SBP for spouse and children coverage rather than for former spouse
coverage.

3.  The applicant's lawyer did not make a request for a deemed election of
the SBP until 1 November 2004, more than 1 year after the divorce.  Once
the 1-year statutory limitation passed, and upon the first anniversary of
the FSM's remarriage, the FSM's current spouse became the lawful
beneficiary of the SBP. Absent a statement from the FSM’s current spouse
asserting that she agrees to renounce the SBP in perpetuity in favor of the
applicant, the Board will not take any action to remove her as the lawful
SBP beneficiary.  To do so would constitute an unconstitutional taking
without due process of law.

4.  Regrettably, there is an insufficient basis on which to grant the
relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jch___  __reb___  __jrm___  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.




                                  __James C. Hise_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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