RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060003713


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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, the former spouse of a former service member (FSM),
requests, in effect, that she be entitled to an SBP (Survivor Benefit Plan)
beneficiary election.

2.  The applicant states, in effect, that she is requesting an inquiry into
her SBP beneficiary election.  She was married to the FSM who retired on
1 February 1995.  They were divorced on 4 October 1997.  She does not
recall signing a concurrence statement.  She believes if the DD Form 2656
(Data for Payment of Retired Personnel) was signed, it is not her
signature.

3.  The applicant provides a copy of her divorce decree and a copy of the
FSM's  DD Form 2656 in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on
25 September 1978.  The FSM successfully completed basic combat training
and advanced individual training at Fort Knox, Kentucky.  On completion of
his advanced training, he was awarded the military occupational specialty
(MOS), 19D, Field Scout Observer.  The FSM was promoted to staff sergeant
(SSG/E-6) effective 1 April 1980.

2.  On 22 November 1994, in preparation for his retirement, the FSM
completed a DD Form 2656.  In item   29 (Beneficiary Category), of his DD
Form 2656, he elected not to participate in SBP.  Item 37 (Signature of
Spouse), of the FSM's DD Form 2656, shows the former spouse, signed and
dated the form on 22 November 1994.  The form was also signed by the FSM,
in item 43 (Signature of Member) and witnessed by the Retirement Services
Officer, Retirement Services Division, Fort Knox, Kentucky on the same
date, in items 39 and 46 (Signature of Witness).

3.  The FSM continued to serve until he was separated on 31 January 1995,
and was placed on the Retired List effective 1 February 1995, in the rank
of SSG.

4.  The applicant's, former spouse, provides a copy of her Order and
Decree, from the Hardin Circuit Court, Division No 1, Elizabethtown,
Kentucky, which shows they were divorced on 4 October 1997.  The Order and
Decree indicates that she was awarded her share of her spouse's military
retirement benefits pursuant to the formula in Poe v. Poe.  This document
did not mention SBP.
5.  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, and are
irrevocable except as provided for by law.

6.  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.  It established procedures by which a former spouse could receive
all or a portion of that court settlement as a direct payment from the
service finance center.

7.  Public Law 98-94, dated 24 September 1983, established SBP for former
spouses of already retired members and reservists.

8.  Title 10, U. S. Code, section 1448(b) (Insurable Interest and Former
Spouse Coverage), subsection 1448(b)(2), states that a person who has a
former spouse upon becoming eligible to participate in the SBP may elect to
provide an annuity to that former spouse.

9.  Title 10, U. S. Code, section 1448(b)(3), incorporates the provisions
of the USFSPA relating to the SBP.  It permits a person who, incident to a
proceeding of divorce, is required by court order to elect to provide an
annuity to a former spouse to make such an election.  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.

10.  Title 10, U. S. Code, section 1450(f) states that a person who elects
to provide an annuity to a former spouse may change that election and
provide an annuity to his spouse or dependent child, subject to
limitations.  A person who, incident to a proceeding of divorce, is
required by a court order to elect former spouse coverage or who enters
into a written agreement (whether voluntary or required by a court order)
to make such an election, and who makes an election pursuant to such order
or agreement, may not change that election unless:

     (a) in a case in which the election is required by a court order or
where an agreement to make the election has been incorporated in, ratified,
or approved by a court order, the person furnishes a copy of a court order
which modifies the provisions of all previous court orders relating to such
election or modifies the agreement to make such election, so as to permit
the person to change the election; or

     (b) in a case in which a written agreement has not been incorporated
in, ratified, or approved by a court order, the person furnishes a
statement signed by the former spouse that evidences the former spouse's
agreement to a change in the election.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM was placed on the Retired
List, and elected not to participate in the SBP.  His DD Form 2656 was
signed by him and the applicant, his former spouse, on 22 November 1994.
It was also signed and witnessed by the Retirement Services Officer,
Retirement Services Division.

2.  A review of the Order and Decree, dated 4 October 1997, the date of
their divorce, indicates that the applicant, the former spouse, was awarded
just over 43 percent of the FSM's military retirement.  This Order and
Decree does not include entitlement by the former spouse to SBP.

3.  The evidence shows that the FSM and the applicant were still married at
the time of his placement on the Retired List and they were divorced
32 months later on 4 October 1997.

4.  The evidence shows that the applicant, the former spouse, was entitled
to Retired pay, not SBP by the divorce decree.  It is presumed that
everything was done correctly.

5.  The applicant, the former spouse, alleges that she does not recall
signing the applicant’s DA Form 2656 (survival benefit concurrence
statement), and alludes that the statement may have been completed falsely,
meaning her signature may have been forged.  However, the Retirement
Services Officer authenticated items 39 and 46 of the applicant’s DA Form
2656, to show that the signature of both parties concerned, the FSM and the
applicant, were witnessed.




6.  It appears, although not specifically expressed by the applicant, the
former spouse, that she now wishes to have the FSM change his election and
provide SBP coverage for her, as his former spouse.  The decision to
provide a former spouse an annuity under SBP is that of the FSM.  It
appears that since it was not an issue at the time of their divorce, and
since the FSM is apparently capable of making such an election, the ABCMR
will not intervene.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____J___  __SP ___  ___DJP__  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 T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003713                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19950131                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 12                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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