RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060007039


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. 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 requests that his records be corrected to show he elected
to participate in the Survivor Benefit Plan (SBP) for former spouse
coverage.

2.  The applicant states that he was required to name his former spouse his
SBP beneficiary by the court.

3.  The applicant provides a copy of the Decree of Dissolution of Marriage;
a Judgment of Contempt; a Judgment and Order Reviving Judgment; his current
spouse’s waiver of her entitlement to the SBP; and a DD Form 2656-1
(Survivor Benefit Plan (SBP) Election Statement for Former Spouse
Coverage).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 August 1980.

2.  The applicant and his former spouse, Beverly, divorced on 7 November
1994. The Decree of Dissolution of Marriage stated in pertinent part, “That
the Respondent shall irrevocably name Petitioner as his survivor and
designate her as his sole beneficiary under the Survivor Benefit Plan…and
shall sign any and all documents necessary to effectuate such designation.”

3.  The applicant married his current spouse on 6 February 1996.

4.  On 7 October 2003, the applicant completed a DD Form 2656 (Data for
Payment of Retired Personnel) and elected to participate in the SBP for
spouse only coverage, full base amount.  He retired on 1 February 2004.

5.  The applicant’s former spouse, Beverly, successful petitioned the
divorce court to hold the applicant in contempt of the court’s order
regarding the SBP designation.  The court ordered him to comply with its
order on 25 January 2005. However, the applicant’s current spouse was not a
party to these proceedings.

6.  On or about 25 April 2005, the applicant completed a DD Form 2656-1,
attempting to change his SBP coverage to former spouse coverage.

7.  On 24 April 2006, the applicant’s current spouse made a qualified
waiver of her right to the SBP.  On 30 August 2006, his current spouse
waived her right to the SBP with no qualifications.

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.

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.

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage (without the member’s agreement) in those cases where
the member was participating in the SBP or was still on active duty and had
not yet made an SBP election.

11.  Title 10, U. S. Code, section 1448(b)(2) 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.  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.  When the applicant divorced in November 1994, the Decree of Dissolution
of Marriage required him to name his former spouse, Beverly, as his SBP
beneficiary.  His former spouse did not make a timely request for a deemed
election.

2.  However, when the applicant retired on 1 February 2004, he elected to
participate in the SBP for spouse coverage, contrary to the court’s order.
The court subsequently found him in contempt of court and ordered him to
comply with its order.  Unfortunately, the SBP election had already been
made for the current spouse of the applicant.  The court proceedings did
not affect her right to the SBP because she did not participate as a party
in them and therefore did not receive due process of law.

3.  Nevertheless, it is now the applicant’s intention to comply with the
court’s order.  His current spouse has provided her concurrence with his
request to change his SBP election to former spouse coverage.  Therefore,
it is now legally permissible, as well as equitable, to correct his SBP
election to show former spouse coverage.

BOARD VOTE:

__jpi___  __gjp___  __ksj___  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 that, when he completed his DD Form 2656 on 7 October 2003, he
elected to participate in the SBP for former spouse coverage, full base
amount, with his current wife’s concurrence.




                                  __John P. Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007039                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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