RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060000618


      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. Marla J. Troup                |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. 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 deceased
former spouse, a former service member (FSM), be corrected to show that he
changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to
former spouse coverage and that he applied for retired pay.

2.  The applicant states she has received no benefits since the FSM reached
age 60.  She was told he had applied [for retired pay], and only in June
[2005] did she find out that he had not.  He told their daughters that he
applied for a pension but paperwork was a problem.  She did not know that
she should have applied on her own.  She found papers after the FSM’s death
stating she is a beneficiary.

3.  The applicant provides a self-authored letter dated 27 October 2005; a
         5 August 2005 letter from the U. S. Army Human Resources Command –
St. Louis; the FSM’s notification of eligibility for retired pay at age 60
(his 20-year letter); the FSM’s DD Form 1883 (Survivor Benefit Plan
Election Certificate) with spousal concurrence; the divorce decree; a 17
October 2005 letter from the Veterans of Foreign Wars; a letter of
authorization to her senator; a DD Form 2656-7 (Verification for Survivor
Annuity) with a 7 December 2005 cover letter; the FSM’s death certificate;
their marriage certificate; and the FSM’s Army National Guard Retirement
Points History Statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 19 December 1942.  He and the applicant married on
23 June 1962.  After having had prior service, he enlisted in the Army
National Guard on 27 April 1981.  His 20-year letter is dated 31 August
1995.

2.  On 16 September 1995, the FSM elected to participate in the RCSBP for
spouse only coverage, full base amount, option B.

3.  On 9 December 1997, the FSM and the applicant divorced.  The divorce
decree states in pertinent part, “In addition thereto, the husband receives
a pension from his service with the National Guard.  This pension shall be
divided by way of a QDRO (qualified domestic relations order) and the wife
shall receive 50% of the marital coverture portion of same.  Counsel for
husband shall be responsible for preparing the subject QDRO.”  The divorce
decree does not mention the SBP.  The QDRO is not available.

4.  The FSM turned age 60 on 19 December 2002.

5.  The FSM apparently remarried on an unknown date.  He died on 10 March
2005.  His death certificate lists his marital status as married and the
surviving spouse’s name is not the applicant’s.

6.  Records at the U. S. Army Human Resources Command – St. Louis show that
the FSM never applied for retired pay.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members on active duty could elect to have their
retired pay reduced to provide for an annuity after death to surviving
dependents. Elections are made by category, not by name.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way
for those who had qualified for reserve retirement, but were not yet age
60, to provide an annuity for their survivors should they die before
reaching age 60.  Three options are available:  (A)  elect to decline
enrollment and choose at age 60 whether to start SBP participation; (B)
elect that a beneficiary receive an annuity if they die before age 60 but
delay payment of it until the date of the member’s 60th birthday; (C)
elect that a beneficiary receive an annuity immediately upon their death if
before age 60.  If death does not occur before age 60, the RCSBP costs for
options B and C are deducted from the member’s retired pay.

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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.

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

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage (without the member’s agreement) in those cases where
the member was participating in the SBP or was still on active duty and had
not yet made an SBP election.

12.  Title 10, U. S. Code, section 12731(a) states that a person is
entitled, upon application, to retired pay if the person is at least 60
years of age, has performed at least 20 years of qualifying service, and
the last eight years of qualifying service have been performed while a
member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided her divorce decree, which indicated she was
awarded 50 percent of the FSM’s [future] retired pay.  The divorce decree
did not award her the SBP, and the QDRO is not available, so it cannot be
determined if the SBP was mentioned in the QDRO.  SBP elections are made by
category, not by name.  Since there is no evidence to show the applicant
was awarded the SBP as a former spouse by the divorce court, even if the
FSM had applied for retired pay, there would have been insufficient
evidence to warrant correcting the records to show she is the FSM’s SBP
beneficiary.

2.  It is acknowledged that the divorce decree awarded the applicant 50
percent of the FSM’s retired pay.  However, retired pay is only an
entitlement if the member applies for it.  The evidence of record shows the
FSM did not apply for retired pay.  Thus, even if the applicant had
“applied on her own” (i.e., requested her portion of his retired pay on her
own), she could not have received her portion because he never applied for
retired pay.

3.  The applicant stated that the FSM told their daughters that he applied
for a pension but paperwork was a problem.  However, there is no evidence
to show he attempted to apply for retired pay, and it cannot be determined
if the FSM made a deliberate attempt to avoid his obligation under the
terms of the divorce by failing to apply for retired pay.  The FSM turned
age 60 in December 2002, and he died in March 2005.  The applicant provides
no evidence to show she attempted to resolve this issue with the FSM or
through the courts during the       27 months after the FSM turned age 60
and before his death.

4.  The burden of proof is on the applicant and, regrettably, there is
insufficient evidence at this time to warrant granting the relief (either
receipt of the SBP annuity or a portion of the FSM’s retired pay)
requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mjt___  __cad___  __eem___  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.




                                  __Marla J. Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000618                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |136.06                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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