RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060003619


      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. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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 to show former spouse coverage and that she be paid the SBP
annuity.

2.  The applicant states that the Defense Finance and Accounting Service
(DFAS) does not have the FSM’s complete records.  She states the FSM sent
numerous documents listing her as his beneficiary and he had intended for
her to receive the SBP annuity.

3.  In a letter, dated 12 February 2006, the applicant stated she disagreed
with the decision for nonpayment of SBP because it was unjust.  She was
informed in November 2005 that her request for the SBP annuity was denied
because DFAS had not received the appropriate forms.  She also stated that
she and the FSM had a lengthy, stormy relationship, which lasted over 50
years.  They served together as a team through many stateside assignments
and overseas tours.  In addition, she stated that their friendship and love
managed to survive two marriages and two divorces and eventually a common-
law reunion before his death.  The FSM designated the applicant as the
beneficiary of his SBP.  The FSM’s Power of Attorney granted the applicant
general authority over all of his personal matters.  She stated that she
continued to care for the FSM throughout his terminal illness and they
maintained a joint account throughout their relationship. The FSM’s Last
Will and Testament reflects his wishes that the applicant inherit his
possessions.

4.  The applicant provides a DA Form 5002 (SBP Election); the FSM’s Alimony
Support Statement; a General Power of Attorney; a DFAS-CL Form 5890-2
(Designation of Beneficiary Information); the FSM’s Retiree Account
Statement; the FSM’s Last Will and Testament; the FSM’s and the applicant’s
joint bank account statement; an Assignment of Proceeds of Insurance with a
listing of funeral expenses; a divorce decree; and the FSM’s Certificate of
Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 17 November 1948.  He married
the applicant on 22 April 1951.  He continued to serve on active duty
through a series of reenlistments.

2.  The FSM completed a DA Form 1041 (Election of Options Under the
Uniformed Services Contingency Option Plan of 1953) on 4 December 1966 and
elected not to receive reduced retired pay in order to provide an annuity
for his dependents.  He indicated that this was his original election.
3.  The FSM retired from the Regular Army on 1 January 1971.

4.  The FSM and the applicant were divorced on an unknown date in 1971 and
remarried in July 1973.

5.  On 31 August 1982, the FSM completed an SBP Election Form and elected
to participate in the SBP for spouse only coverage, reduced base amount.

6.  The FSM and the applicant were divorced on 14 March 1990.  The divorce
decree states, in part, “However, the Court finds that the Respondent has
established a Survivor Benefit Annuity which is currently in effect.  The
Court finds that because of the duration of the marriage, Petitioner’s
contribution to Respondent’s military career, and the Court’s below listed
award of maintenance to Petitioner, that Respondent shall designate
Petitioner as the irrevocable beneficiary of his Survivor Benefit Annuity.”

7.  The FSM submitted a DFAS-CL Form 5890-2 on 6 April 2004 and designated
the applicant as his beneficiary.

8.  The FSM’s Retiree Account Statement with an effective date of 3 May
2004 indicates there was no SBP election reflected on his account.  It also
indicates the applicant as the garnishment deduction payee and as the FSM’s
beneficiary for arrears of pay, with the relationship noted as “wife.”

9.  The FSM died on 1 January 2005.  The death certificate shows his
marital status as divorced.  However, the applicant is also listed as
“spouse.”

10.  Information obtained from DFAS on 11 September 2006 revealed that the
FSM had enrolled in the SBP and the SBP coverage stopped in 1990.

11.  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.  It established a 12-
month Open Season for those who retired prior to enactment of the law.
Elections are made by category, not by name.

12.  Public Law 97-35, enacted 12 August 1981, established the second Open
Season from 1 October 1981 - 30 September 1982.

13.  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.
14.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

15.  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 after the date of
the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  It was Congress' 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.

2.  The FSM retired on 1 January 1971, prior to the establishment of the
SBP.  He divorced the applicant in 1971 and remarried her in 1973.  He
completed a DA Form 5002 in August 1982 and elected to participate in the
SBP for spouse coverage, reduced base amount.

3.  The FSM and the applicant were divorced in March 1990.  At that time,
his SBP coverage was suspended.  The divorce decree directs the FSM to
designate the applicant as the beneficiary of his survivor benefit annuity
based on the duration of the marriage and other factors.  There is no
evidence that either the FSM or applicant submitted an SBP former spouse
election within one year of this divorce.

4.  The FSM’s death certificate showed he was either divorced at the time
of his death, or married to the applicant.  This establishes that there is
either no surviving spouse to possibly claim the SBP annuity; or if there
is, she is the applicant herself.

5.  Although the FSM did not pay SBP premiums after the divorce,
considering there is evidence to show it was the FSM's intent to provide
financial security for the applicant, his former spouse, it would be
equitable to correct his records to show he changed his SBP coverage to
former spouse on 1 April 1990.  SBP premiums due from March 1990 to January
2005 will have to be paid before the annuity will be paid, or will be
deducted from the annuity.

BOARD VOTE:

JG______  MF______  SF______  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 showing the FSM had requested that his SBP coverage be changed
to former spouse coverage on 1 April 1990 and that the applicant be paid
the SBP annuity retroactive to the date of the FSM’s death.

2.  The applicant will be advised that the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.




                                  James Gunlicks________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003619                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061005                                |
|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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