RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050015540


      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 the FSM paid into the SBP believing she, as his
former spouse, would receive the SBP after his death.  The divorce took
place in Germany, where the courts are not familiar with the requirements
concerning the SBP.

3.  The applicant provides the FSM's Retiree Account Statement with an
effective date of 2 December 1999 and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  After having had prior inactive service, the FSM entered active duty as
a commissioned officer on 20 October 1955.  He and the applicant married on
    11 July 1968.

2.  The FSM retired on 1 November 1975.  He had completed a DA Form 4240
(Data for Payment of Retired Army Personnel) and had elected to participate
in the SBP for spouse and children coverage, full base amount.

3.  The FSM and the applicant divorced, through a German court, on
       22 December 1978.

4.  The FSM died on 1 February 2002.  His death certificate shows his
marital status as divorced.  Records at the Defense Finance and Accounting
Service (DFAS) show he paid SBP premiums until his death, and no one is
currently receiving the annuity.

5.  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.

6.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October
1976), provided for the suspension of spouse costs if marriage ends in
death or divorce.

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

9.  Public Law 99-145, enacted 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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM elected spouse and children coverage when he retired in 1975.
He and the applicant divorced in December 1978, prior to the establishment
of former spouse coverage.

2.  Nevertheless, the FSM continued to pay spouse premiums until he died in
February 2002.  The available evidence shows he did not remarry.  Records
at DFAS show no one is currently receiving the SBP annuity.  It is
reasonable to presume the FSM intended the applicant to remain his SBP
beneficiary and thus it would be equitable to correct his records to show
he changed his SBP coverage to former spouse and children coverage.

3.  Until 1 March 1986, former spouse costs were paid at the higher
insurable interest rates.  Former spouse coverage for retired members was
first established on 24 September 1983.  The FSM would have owed the higher
costs from 24 September 1983 to 1 March 1986.  However, it appears likely
that those additional costs would be partially offset by the spouse
coverage costs that should have been suspended from the date of divorce in
December 1978 until  24 September 1983.

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 the FSM made a written request to change his SBP
coverage to former spouse and children coverage on 24 September 1983 and
that his request was received and processed by the appropriate office in a
timely manner;

     b.  showing that the FSM made a written request to have his former
spouse coverage premiums paid under spouse provisions on 1 March 1986 and
that his request was received and processed by the appropriate office in a
timely manner;

     c.  advising the applicant that the Defense Finance and Accounting
Service will be instructed to collect SBP costs due, if any; and

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




                                  __James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015540                           |
|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.                      |                                        |


-----------------------
[pic]