RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050014710


      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 E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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
changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states she is the FSM’s surviving spouse and his legal
executor (for his estate).  They were briefed, upon his retirement, that
the individual named as the SBP beneficiary stayed as the beneficiary
unless it was changed.  No changes were made to the SBP.  In an affidavit
dated 28 April 2005, the applicant swore and affirmed that she and the FSM
shared a residence from 1977 until the FSM's death in March 2005, and
during that time they only lived apart due to the FSM's job location in
Korea.

3.  The applicant provides the FSM's death certificate; a Certificate of
Qualification; a 17 March 2005 letter from Walter Reed Army Medical Center;
an affidavit from the applicant dated 28 April 2005; three general powers
of attorney, dated 20 January 1994, 11 April 2002, and 28 April 2004; a
Retiree Account Statement with an effective date of 2 December 2003; and a
deed, dated          27 February 2003.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the FSM enlisted in the Regular Army on
       23 August 1960.  He and the applicant married on 31 August 1976.

2.  The FSM retired on 1 September 1978.  He had completed a DA Form 4240
(Data for Payment of Retired Army Personnel) and elected to participate in
the SBP for spouse coverage, full base amount.

3.  The Defense Finance and Accounting Service (DFAS) provided a divorce
decree showing the State of North Carolina granted the FSM a divorce from
the applicant on 3 October 1991, after they had been separated since May
1989.  The divorce decree does not mention the SBP.  The divorce decree
indicated that it appeared to the Court that the applicant accepted service
and acknowledged receipt of a copy of the original Civil Summons, original
Complaint, and Amended Complaint on or about 25 July 1991.

4.  On 20 January 1994, 11 April 2002, and 28 April 2004, the FSM granted
the applicant general power of attorney.  On 27 February 2003, the FSM and
the applicant entered into a deed for a parcel of real estate in Virginia.
The deed identified the FSM and the applicant as "husband and wife."  In a
letter dated    17 March 2005, a doctor from the Walter Reed Army Medical
Center indicated the applicant represented herself as the FSM's wife during
the FSM's 7-day hospital stay.

5.  On 17 March 2005, the FSM died.  The death certificate shows his
marital status as divorced and no surviving spouse is listed.

6.  Records at DFAS show that the FSM continued to pay SBP premiums until
sometime in 2004 (when he apparently waived retired pay in favor of
Department of Veterans Affairs (VA) compensation), but no SBP premiums have
been refunded to any next of kin. No one is currently receiving the SBP
annuity.  DFAS records also show the applicant identified herself as an "ex-
spouse" on her SBP annuity application packet.

7.  On 18 May 2006, the Army Retirement Services office verified that
neither Virginia (where the applicant currently lives), North Carolina
(where the divorce decree stated the FSM lived), nor Mississippi (where the
divorce decree stated the applicant lived) recognize common law marriages.

8.  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.

9.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that there is some confusion in this case.  The
applicant stated in an April 2005 affidavit that she and the FSM shared a
residence from 1977 until the FSM's death in March 2005, and during that
time they only lived apart due to the FSM's job location in Korea.
However, the 1991 divorce decree indicated that the FSM was living in North
Carolina at that time while the applicant was living in Mississippi and
that they had been separated since May 1989.  While the applicant
represents herself to this Board as the FSM's surviving spouse, she
represented herself to DFAS as his ex-spouse.

2.  Nevertheless, although Court documents indicate they divorced in 1991,
the FSM continued to pay SBP spouse premiums until 2004, when it appears
his retired pay was stopped in favor of VA compensation.  The FSM died
shortly afterwards in March 2005. In January 1994, April 2002, and April
2004, the FSM granted the applicant general power of attorney.  On 27
February 2003, the FSM and the applicant entered into a deed for a parcel
of real estate in Virginia.  The deed identified the FSM and the applicant
as "husband and wife."  Even though Virginia does not recognize common-law
marriages, perhaps that is what the FSM and the applicant intended by
identifying themselves as "husband and wife."

3.  Since a preponderance of the evidence indicates it was the FSM's intent
to provide the SBP to the applicant, it would be equitable to correct the
FSM's records to show he changed his SBP coverage to former spouse
coverage.

BOARD VOTE:

__jev___  __bje___  __dll___  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 he made a written request to change his SBP coverage
to former spouse coverage on 1 November 1991 and that his request was
received and processed by the appropriate office in a timely manner; and

     b.  paying the SBP annuity to the applicant retroactive to the date of
the FSM's death.




                                  __James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|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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