RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20050017430


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 believes she is entitled to the SBP because
she was married to the FSM for 15 years and neither of them remarried after
they divorced.  They talked about what she would do if something happened
to him.  He said she would get two pensions – his carpenter’s pension and
his Army pension – and Social Security when she turned 60.  Since his
death, she has been told that she had a year after the divorce to send in a
claim for her benefit; however, she was not made aware by mail or by phone
that she had to do so, nor did the FSM have any knowledge of this.

3.  The applicant provides their marriage certificate; a joint checking
account statement; a statement from the FSM’s sister; page 1 of the
Judgment of Dissolution of Marriage; and the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 20 January 1927.  After having had prior active
duty service, he was transferred to the Enlisted Reserve Corps on 30 June
1949.  His notification of eligibility for retired pay (his 20-year letter)
is dated 28 August 1968.  (He was issued another 20-year letter on 13
November 1968.)  He applied for retired pay by completing a DA Form 4240
(Data for Payment of Retired Army Personnel) on 7 October 1986.  He
indicated he was not married at the time and declined SBP coverage.

2.  The FSM and the applicant married on 1 May 1987.  Records at the
Defense Finance and Accounting Service (DFAS) show the FSM enrolled in the
SBP for spouse and child coverage some time after he married.

3.  The FSM and the applicant divorced on or about 11 October 2002.  The
one page of the Judgment of Dissolution of Marriage provided by the
applicant does not mention the SBP.

4.  The FSM died on 30 August 2005.  The death certificate shows his
marital status as divorced.

5.  The applicant provided a statement from the FSM’s sister.  His sister
stated the FSM and the applicant divorced in 2002 but continued to share a
bank account.
6.  Records at DFAS show that the FSM continued to pay SBP premiums after
the divorce and that no one is currently receiving the SBP annuity.

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.  To retain annuity
eligibility, a surviving spouse cannot remarry before age 55.  If he or she
remarries before age 55, eligibility may be regained if that remarriage is
terminated by death, divorce, or annulment.

8.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  Although the portion of the Judgment of Dissolution of Marriage which
the applicant provided did not indicate whether she was to remain the SBP
beneficiary, records at DFAS show the FSM continued to pay SBP premiums
after they were divorced.  The FSM’s death certificate showed he was
divorced at the time of his death.

2.  No one else is receiving the SBP annuity.  There is additional evidence
(a joint checking account) to show the FSM intended to continue to provide
for the applicant in some manner.  Therefore, it would be equitable to
correct the FSM’s records to show he changed his SBP spouse and child
coverage to former spouse and child coverage.

BOARD VOTE:

__mkp___  __mjf___  __gjp___  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
spouse and child coverage to former spouse and child coverage on 1 January
2003 and that his request was received and processed by the appropriate
office in a timely manner; and

     b.  paying to the applicant, provided she is otherwise eligible, the
SBP annuity retroactive to the date of the FSM’s death.




                                  __Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017430                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|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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