RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050014731


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald 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, the former spouse, requests that the Survivor Benefit
Plan (SBP) coverage of her former husband, a former service member (FSM),
be changed from spouse coverage to former spouse coverage.

2.  The applicant states she filed for divorce on 31 August 2004.  She
included in the divorce decree that she would like the SBP as part of her
divorce settlement for herself and her two children.  She states she sent a
copy of her divorce decree and a deemed election to the military on 16 June
2005 by certified mail.  On 20 June 2005, she received the returned receipt
and she put it in her safe.  When she checked on information at a military
garnishment center, she discovered that her divorce decree was never
received.  She feels the FSM's records should be corrected so she can
receive SBP.  She states she did everything correctly and in good faith and
would not be able to support her children without the SBP.  She also states
that her former spouse remarried three months after the divorce was final.

3.  The applicant provides her divorce decree; the FSM's Retiree Account
Statement; and her deemed election for SBP coverage with a Domestic Return
Receipt and a Certified Mail Receipt.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 31 July 1972.  He married the
applicant on 26 August 1990.

2.  The FSM continued to serve on active duty and retired from the Regular
Army on 1 January 1993.  At that time, he completed a DA Form 4240 (Data
for Payment of Retired Army Personnel) and elected to participate in the
SBP for spouse and dependent children, full base amount.

3.  The FSM and the applicant entered into a Marital Settlement Agreement
on 20 July 2004.  The Judgment for Dissolution of Marriage incorporated
this agreement into the divorce decree.  The Marital Settlement Agreement
stated, in part, "That HUSBAND is entitled to a military survival death
benefit (SDB) and HUSBAND has currently named WIFE and the two children of
the parties as beneficiaries.  HUSBAND has agreed to and shall maintain
that designation and shall not change it, except with the agreement and
upon the written authorization of WIFE."

4.  The FSM and the applicant were divorced on 31 August 2004.

5.  The FSM remarried on an unknown date.

6. The applicant submitted a written request, dated 25 May 2005, for a
deemed election to DFAS to change the SBP coverage from spouse and children
to former spouse and children coverage.  The Certified Mail Receipt was
addressed to the Defense Finance and Accounting Service (DFAS) in
Cleveland, Ohio and was postmarked 16 June 2005.  The Domestic Return
Receipt was addressed to DFAS and was postmarked 20 June 2005.

7.  The FSM's Retiree Account Statement with an effective date of 8 June
2005 shows SBP coverage for spouse and children coverage, full base amount.
 This statement shows the applicant as a beneficiary.  The FSM's Federal
Tax Withholding Status is shown as "Married."

8.  Information obtained from DFAS on 25 May 2006 revealed that it did not
receive any divorce documents.

9.  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.  It required a 2-year
waiting period for new spouse eligibility following post-retirement
remarriage.  Public Law
94-496, enacted 14 October 1976, but effective 1 October 1976, reduced this
waiting period to 1 year following post-retirement remarriage.

10.  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.  The law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.  It established procedures by which a former spouse could receive
all or a portion of that court settlement as a direct payment from the
service finance center.

11.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions
of the USFSPA relating to the SBP.  It permits a person who, incident to a
proceeding of divorce, is required by court order to elect to provide an
annuity to a former spouse to make such an election.  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 of
the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 1 January 1993 and elected SBP spouse and dependent
children coverage.  He was married to the applicant at that time.

2.  The FSM and the applicant were divorced on 31 August 2004.  The Marital
Settlement Agreement stated that the FSM was entitled to a "survival death
benefit (SDB)" and that he had designated the applicant and their two
children as beneficiaries.  The FSM agreed to maintain that designation and
would not change it except with the agreement and written authorization of
the applicant.

3.  The FSM remarried on an unknown date.  His Retiree Account Statement
that was dated 8 June 2005 shows he was married at that time.  The
applicant stated the FSM remarried three months after their divorce, around
November 2004.  (The current spouse would not have been the lawful
beneficiary for SBP coverage until around November 2005, on the first
anniversary of the remarriage.)  The FSM is apparently still alive at this
time.

4.  The Certified Mail Receipt and Domestic Return Receipt show the
applicant submitted a written request for a deemed election for former
spouse and children coverage in June 2005, within one year after the date
of the divorce decree.  However, it appears that DFAS never received the
deemed election or the divorce decree.

5.  Considering the applicant submitted a deemed election for former spouse
and children coverage in a timely manner and provided documentation as
evidence of her timely deemed election attempt, it would be appropriate to
correct the records to show the appropriate office received her 25 May 2005
request for a deemed election and processed it in a timely manner.

BOARD VOTE:

JV______  BE______  DL______  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
showing the appropriate office received her 25 May 2005 request for a
deemed election and processed it in a timely manner.




                                  James Vick____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014731                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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