RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050015665


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 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 effect, per the court-ordered divorce decree,
she should be the SBP beneficiary.  She contends the FSM agreed that she
should get half of his pension as long as he lives and that he would
continue the SBP payments so she would have income after he died.  She
points out that after she sent the paperwork she was supposed to provide at
the time of the divorce, she received a letter that told her ALL
qualifications had been received.

3.  The applicant provides a copy of the divorce decree; a letter, dated
16 January 1996, from the Defense Finance and Accounting Service (DFAS);
domestic return receipts; a marriage certificate; her birth certificate;
and the FSM's retirement orders.

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty on 15 March 1962.  He and the applicant
married on 15 March 1965.

2.  Part IV (Survivor Benefit Plan Election) on the FSM's DA Form 4240
(Data for Payment of Retired Army Personnel), dated 21 April 1982, shows he
enrolled in the SBP for spouse and dependent children, full amount.

3.  The FSM retired in the rank of lieutenant colonel on 30 June 1982,
after completing over 20 years of active service.

4.  The FSM and the applicant divorced on 17 August 1995.  The divorce
decree incorporated an “Agreement,” which states, in pertinent part, that
"The Wife shall receive one-half (as defined below) of all military annuity
and or pension retirement benefits that the Husband is entitled to receive
whether payment is received in lump sum or regularly scheduled payments
during the life of the Husband.  Said payments shall be made by the
government agency, pension agency, pension or annuity plan or manager of
said annuity or pension plan.  Said payments shall be calculated from the
gross amount after deducting taxes and the Survivor Benefit Plan cost,
which deduction shall be made each month during the lifetime of the
Husband."

5.  The FSM remarried on 14 December 1996.

6.  In support of her claim, the applicant provided a letter, dated 16
January 1996, from DFAS that references her request for a division of the
retainer/retired pay of the FSM under the Uniformed Services Former Spouses
Protection Act (USFSPA).  This letter states, in pertinent part, that "It
would appear that all the requirements under the Act and the Regulations
have been met."

7.  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.

8.  Public Law 97-252, the USFSPA, enacted 8 September 1982, established
SBP coverage for former spouses of retiring members.

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

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage in those cases where the retiree had elected spouse
coverage at retirement or was still on active duty and had not yet made an
SBP election.

11.  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 of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The DFAS letter provided by the applicant pertained to her request for
a division of the retainer/retired pay of the FSM under the USFSPA, not the
SBP.

2.  There is no evidence to show that either the FSM or the applicant
requested that his SBP coverage be changed to former spouse coverage within
the statutory one-year time limit.  In addition, it is not clear that the
divorce decree provided for SBP former spouse coverage.  If SBP former
spouse coverage was intended, the divorce decree did not provide an
accurate description of the annuity.

3.  Further, the FSM remarried on 14 December 1996.  At the one-year
anniversary of their marriage, his current spouse acquired a vested
interest in the SBP as the FSM's legal beneficiary.  Absent a statement
from the FSM's spouse asserting that she agrees to renounce payment of the
SBP annuity in perpetuity in favor of the applicant (along with a
clarification of the divorce decree), the Board will not take any action to
prevent the lawful beneficiary from receiving those benefits.  Regrettably,
there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM_____  _JR_____  _EM_____  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.


                                  __John Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015665                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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