RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060004313


      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. John Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 requests, in effect, that the Survivor
Benefit Plan (SBP) coverage of her former husband, a former service member
(FSM), be changed from spouse coverage to former spouse coverage.

2.  The applicant states that she and the FSM were divorced on 5 February
1996.  She was unaware that she was to submit documentation to the finance
office in order to have the SBP changed to former spouse coverage.  She
states the FSM submitted documentation to change the benefit to “No
Beneficiary” sometime after the divorce.

3.  The applicant provides a copy of her and the FSM’s divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army on 12 April 1966.  He married the
applicant on or about 7 December 1972.

2.  The FSM continued to serve on active duty and retired on 1 May 1986.
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 and dependent
children coverage, full base amount.

3.  The FSM and the applicant were divorced on 5 February 1996.  The
divorce decree stated, in part, that “IT IS FURTHER ORDERED AND DECREED
that [FSM] shall not, during his lifetime, provide, modify, amend,
withdraw, or in any other manner alter the election to name [applicant]
beneficiary of the Armed Services Survivor Benefit Plan.”

4.  The FSM remarried on 9 December 1996.

5.  There is no evidence of record that indicates the applicant submitted a
written request for a deemed election for former spouse coverage.

6.  The FSM submitted a written request, dated 1 May 2006, to the Defense
Finance and Accounting Service (DFAS) to request his SBP coverage be taken
out of suspension.  He stated that his SBP coverage was suspended in
May 1996 due to his divorce.  He remarried on 9 December 1996 and requested
his SBP be taken out of suspension at that time.  He stated he submitted
all the appropriate information, but this action had not taken place.

7.  Information obtained from DFAS on 27 September 2006 shows the FSM's
current spouse as the beneficiary of the SBP.

8.  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 required a two-year
waiting period for new spouse eligibility following post-retirement
remarriage.  Public Law
94-496, enacted 14 October 1976, but effective 1 October 1976, reduced this
waiting period to one year following post-retirement remarriage.

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.  The 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.

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

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 1 May 1986 and elected SBP spouse and dependent
children coverage.  He was married to the applicant at that time.

2.  The FSM divorced the applicant in February 1996.  The divorce decree
mentions the SBP.  It stated that “[FSM] shall not, during his lifetime,
provide, modify, amend, withdraw, or in any other manner alter the election
to name [applicant] beneficiary of the Armed Services Survivor Benefit
Plan.”  However, there is no evidence of record that shows the applicant
submitted a written request for a deemed election for former spouse
coverage, and it appears the FSM made a considered decision not to comply
with the terms of the divorce decree.  The FSM submitted a written
statement to DFAS requesting his SBP coverage be taken out of the
suspension resulting from his divorce.  As a result, his records at DFAS
currently show his current spouse as his SBP beneficiary.

3.  The FSM remarried on 9 December 1996.  By law, the current spouse
became the lawful beneficiary for SBP coverage in December 1997, on the
first anniversary of the remarriage.

4.  Since the lawful beneficiary of the FSM's SBP is his current spouse,
and in the absence of a timely deemed election, the ABCMR cannot take away
her right to the SBP without her irrevocable consent or due process of law.
 The applicant may petition the court having jurisdiction over the SBP
matter for relief and request reconsideration if she obtains court-ordered
relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JI______  GP______  KJ______  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 Infante__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004313                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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