RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 November 2006
      DOCKET NUMBER:  AR20060004182


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Mr. David K. 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 records of her deceased
former spouse, a former service member (FSM), be corrected to show that he
changed his category of participation in the Survivor Benefit Plan (SBP)
from spouse to former spouse coverage.

2.  The applicant states, in effect, that the FSM enrolled in the SBP for
spouse coverage at the time of his retirement and continued to pay SBP
premiums even after they divorced.  The applicant also states, in effect,
that she and the FSM continued to live together after their divorce, that
she took care of the FSM when he was sick, and that she also stayed with
him at the hospital before he passed away.  The applicant further states,
in effect, that neither she nor the FSM were aware that information
concerning the SBP annuity had to be included in their divorce decree.  The
applicant adds, in effect, regardless of this fact, the FSM continued to
pay the SBP premiums for spouse coverage and assured her that she would
receive an SBP annuity in the event of his death.  However, the applicant
states that subsequent to the FSM's death she applied to the Defense
Finance and Accounting Service (DFAS) for SBP benefits, but was denied.
Consequently, the applicant seeks relief from this Board.  She adds, in
effect, that she and the FSM were married for over 23 years, the FSM
continued to pay SBP premiums after their divorce, and the FSM did not
remarry.

3.  The applicant provides a self-authored statement; State of Texas,
Certification of Vital Record, Certificate of Death, dated 22 February
2005; Coryell County, Texas, Final Decree of Divorce, dated 16 April 1996;
and Commonwealth of Virginia, Newport News, Marriage Register, dated 22
February 1973.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S.
Army on 19 July 1968.  He and the applicant married on 22 February 1973.

2.  The applicant's military service records contain a DA Form 2339
(Application for Voluntary Retirement), dated 27 June 1988.  Item 30
(Statement of Understanding) of this document, in pertinent part, contains
the statement, "I have been briefed concerning the Survivor Benefit Plan.
I understand that I will automatically be in the plan and will pay the full
cost of coverage for my wife, and children if applicable, unless I submit
an election form to the contrary prior to my retirement."  This document
also shows that the FSM and a representative of the FSM's supporting U.S.
Army personnel office both signed the form.

3.  In August 1988, the FSM completed a DA Form 4240 (Data for Payment of
Retired Army Personnel).  Part III (Survivor Benefit Plan Election) of the
DA Form 4240 shows, in pertinent part, that the FSM indicated in Items 10
and 11 that he was married and had dependent children; however, the FSM
failed to elect either a full or reduced SBP annuity in Item 13.  The FSM
and counselor (or another witness) each affixed their signatures in Part VI
(Certification) of the DA Form 4240.  However, Part VII (Survivor Benefit
Plan Certificates) of the DA Form 4240 is absent any entries concerning the
applicant being informed and counseled with respect to the available SBP
options.  In addition, there is no indication that she was not available
for counseling and, therefore, informed of the available SBP options by
letter.  A review of the FSM’s Official Military Personnel File also failed
to reveal a copy of a letter notifying the applicant of the available SBP
options.  However, since the FSM's incomplete SBP election resulted in
spouse coverage at the full base amount, counseling was not required after
all.

4.  The FSM retired from the Army on 1 November 1988, after serving
honorably on active duty for a total of 20 years, 3 months, and 12 days.

5.  On 16 April 1996, the County Court at Law, Coryell County, Texas,
ordered and decreed that the applicant and FSM were divorced and that the
marriage between them was dissolved.  At that time, the court found that
there was no child of the marriage and that none was expected.  This
document shows that the court awarded the applicant, in pertinent part,
"[a]ny and all sums, whether matured or unmatured, accrued or unaccrued,
vested or otherwise, together with all increases thereof, the proceeds
therefore, and any other rights related to any profit-sharing plan,
retirement plan, pension plan, employee stock option plan, employee savings
plan, accrued unpaid bonuses, or other benefit program (emphasis added)
existing by reason of [the FSM's] past, present, or future employment."
This document also specifically addresses the division of military
retirement benefits in accordance with the Uniformed Services Former
Spouses Protection Act, Title 10, U.S. Code, section 1408 (Payment of
retired or retainer pay in compliance with court orders); however, it is
absent any reference to the Survivor Benefit Plan.

6.  There is no evidence of record to show that the FSM took any action to
request a change to his SBP election to former spouse coverage within a
year of the divorce decree being issued, as is required by law.

7.  There is no evidence of record to show that the applicant made an
attempted deemed election to DFAS for former spouse SBP coverage, although
she was not entitled to make such an election based on the divorce decree.
8.  The FSM died on 22 February 2005.  The Certificate of Death shows, in
pertinent part, that the FSM was divorced at the time of his death.

9.  The applicant provides documentation that shows, in pertinent part, she
was married to the FSM for over 23 years and that she was awarded an
interest in the FSM's Army retirement benefits.

10.  In the processing of this case, coordination was made with the DFAS,
Retired Pay Inquiries Branch, Cleveland, Ohio, in order to verify
information relevant to the FSM's participation in the SBP.   This
coordination revealed that the FSM had been paying SBP premiums for spouse
SBP coverage up until the time of his death.  In addition, information was
provided that the former spouse's application for the SBP annuity was
denied based on the fact that the FSM did not change his SBP category from
spouse to former spouse.

11.  Public Law 92-425, the Survivor Benefit Plan, 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.
Retiring members and spouses were to be informed of the SBP options and
effects.

12.  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.  Title 10, U.S. Code, Chapter 73, provides
that a spouse loses status as an SBP beneficiary upon divorce; however, the
means by which the divorced (former) spouse may receive a survivorship
annuity are: (1) if the service member voluntarily elects to provide a
former spouse annuity; (2) the election is made in order to comply with a
court order; or (3) the election is made to comply with a voluntary written
agreement related to a divorce action and that voluntary agreement is part
of a court order for divorce, dissolution, or annulment.

13.  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.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  Paragraph 2-3 of this Army regulation
provides guidance on who may apply.  It states, in pertinent part, that
depending on the circumstances, a child, spouse, parent or other close
relative, heir, or legal representative (such as a guardian or executor) of
the Soldier or FSM may be able to demonstrate a proper interest.
Applicants must send proof of proper interest with the application when
requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The law
also permits the former spouse concerned to request a former spouse SBP
coverage election be deemed to have been made within one year of a date of
a court order of divorce.

2.  The evidence of record indicates that the FSM never notified DFAS
officials to change his SBP election from spouse to former spouse coverage
within a year of the divorce.  The evidence of record also shows that the
FSM never remarried after he divorced his former spouse (i.e., the
applicant).

3.  The evidence of record shows that the applicant did not have the right
to request a deemed election because the divorce decree did not
specifically award her the SBP.

4.  The evidence of record indicates that the applicant was not notified in
person or by letter of the available SBP options prior to the date the FSM
retired from active duty.  The lack of evidence indicating that the
applicant was counseled, or served with the notification letter, support
the fact that the applicant was not made aware that a change in the FSM's
SBP category would be required
(i.e., from spouse to former spouse) in order for her to remain eligible
for the FSM's SBP annuity, in the event of a divorce.

5.  In addition, it is logical to presume that had the FSM wished to
discontinue protection for his former spouse, he would have withdrawn from
the program in 1996 in order to stop paying needless SBP premiums.
Therefore, it appears the FSM believed the applicant retained her SBP
beneficiary status and remained eligible to receive SBP benefits upon his
death, based upon his continued payment of SBP premiums.  The fact that SBP
spouse only premiums continued to be deducted from the FSM's retired pay
through the date of his death appears to be the overriding issue in this
case.  These circumstances establish the probability that the FSM intended
for the applicant to remain his SBP beneficiary after the divorce.
Therefore, relief should be granted on the basis of equity.

6.  The Board concludes that an injustice has occurred in this case.
Therefore, in view of the foregoing, the FSM’s records should be corrected
to show that the FSM changed his SBP election from spouse to former spouse
coverage on
17 April 1996.

BOARD VOTE:

__PHM__  __RGS__  ___DKH__  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
showing:

      a.  that the FSM changed his SBP election from spouse to former
spouse coverage on 17 April 1996; and

      b.  that the applicant be paid an annuity based upon the FSM’s
election to participate in the SBP with former spouse coverage, effective
the date of his death.




                                  ____Patrick H. McGann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004182                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19881031                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 12                  |
|DISCHARGE REASON        |Retirement for Length of Service        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0100.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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