RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 November 2006
      DOCKET NUMBER:  AR20060003265


      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. Patrick McGann                |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 Survivor Benefit Plan (SBP)
election of her deceased former spouse, a former service member (FSM), be
changed from spouse to former spouse and that she be paid the SBP annuity.


2.  The applicant states that the FSM elected SBP spouse coverage and was
unaware he had to notify Defense Finance and Accounting Service (DFAS) of
his divorce and of his intent for her continued coverage after the divorce.
 She states that they were legally separated on 7 November 1977 and the
decision to conclude with a divorce was made in March 1980 prior to the
FSM’s retirement.  She states the divorce paperwork was not filed until 10
June 1980, which was 10 days after the FSM’s retirement.  She also states
the FSM continued to pay SBP premiums for 25 years until his death and he
repeatedly told her and their son in 2004 that she would be taken care of
when he died.  She states that neither she nor the FSM ever remarried and
it was understood that she would be the intended beneficiary even after
their divorce.

3.  The applicant provides a copy of the FSM’s DD Form 214 (Certificate of
Release or Discharge from Active Duty); the FSM’s Certificate of Death; her
and the FSM’s divorce decree; two letters from DFAS; and two Retiree
Account Statements.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 3 December 1950.  After
having had prior enlisted service, the FSM was appointed as a commissioned
officer in the Regular Army on 26 March 1952.

2.  The FSM and the applicant entered into a Property Settlement Agreement
on or about 5 October 1977 and were legally separated on 7 November 1977.
The Property Settlement Agreement is not available.

3.  The FSM continued to serve on active duty and retired from the Regular
Army on 1 June 1980.  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 coverage, full base amount.  The applicant is listed as his
spouse.

4.  The FSM and the applicant were divorced on 10 June 1980.  The divorce
decree incorporates the above mentioned Property Settlement Agreement.

5.  The FSM’s Retiree Account Statements with effective dates of 3 December
2002 and 2 December 2004 show SBP spouse coverage premiums were deducted
from his retired pay.

6.  The FSM died on 19 August 2005.  His death certificate indicates he was
divorced.

7.  By a 27 September 2005 letter from DFAS, the applicant was informed
that SBP premiums were deducted from the FSM’s retired pay until the time
of his death and that he was not married at the time of his death.

8.  Information obtained from DFAS on 17 October 2006 revealed that the FSM
apparently never remarried and there is no current annuitant.

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.  Elections are made by
category, not by name.

10.  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.

11.  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.

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

13.  Public Law 99-145, dated 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 and the applicant divorced before former spouse coverage was
established.  However, the Board concludes that as a matter of equity the
applicant should be granted the SBP annuity.  It was Congress's intent in
establishing the SBP to provide for those spouses who supported the
military member for the majority of his or her military career.  The
applicant was married to the FSM for the majority of his military career.
After their divorce in June 1980, the FSM continued to pay SBP spouse
coverage premiums until his death.  His death certificate showed his
marital status as divorced.  DFAS verified there is no annuitant.

2.  Considering there is evidence to show it was the FSM's intent to
provide SBP coverage for the applicant, his former spouse, it would be
equitable to correct his records to show he changed his SBP spouse coverage
to former spouse coverage on 24 September 1983.

3.  DFAS will have to audit the FSM’s records.  He should not have been
paying
SBP premiums from on or about 10 June 1980, when they divorced, until
24 September 1983, when former spouse coverage for retired members was
established.  However, from 24 September 1983 until 1 March 1986, he should
have been paying SBP costs at the higher insurable interest provisions
rate.

BOARD VOTE:

PM______  RS______  DH______  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the FSM had requested that his SBP coverage be changed
from spouse coverage to former spouse coverage effective 24 September 1983;

      b.  showing he made a written request to change his SBP coverage from
former spouse coverage under insurable interest provisions to former spouse
coverage under spouse provisions on 1 March 1986; and
      c.  after first auditing the FSM’s record to determine if additional
SBP premiums  are due, paying the applicant the SBP annuity retroactive to
the date of the FSM’ death.  Additional SBP premium costs, if any, will be
deducted from the annuity.  Alternatively, overpayment of such costs, if
any, will be refunded to the applicant.




                                  Patrick McGann________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003265                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|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. Chun                                |
|ISSUES         1.       |137.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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