RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060008327


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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 and dependent children coverage at the time of his retirement.  She
also states, in effect, at the time of their divorce the court ordered the
FSM to provide SBP coverage and designate the applicant as the beneficiary.
 The applicant further states that she notified the Defense Finance and
Accounting Service (DFAS) in October 2001 of her former spouse SBP
entitlement by deemed election.  The applicant adds that the FSM retained
her as his designated SBP annuity recipient in name, but he failed to
change his SBP coverage from spouse to former spouse.  She states that the
FSM continued to pay SBP premiums after they divorced and up until the date
of his death; however, since the FSM did not change the SBP category of
coverage from spouse to former spouse, she can not claim SBP benefits from
the DFAS.

3.  The applicant provides a copy of Missouri Department of Health and
Senior Services, Certificate of Death, dated 10 May 2006; Circuit Court of
Pulaski County, Pulaski County, Missouri, Judgment and Decree of
Dissolution of Marriage, dated 12 October 2001, accompanied by State of
Missouri, County of Pulaski, Clerk of the Circuit Court for and within
Pulaski County, Missouri notarized statement of true and correct copy of
the Decree of Dissolution of Marriage, dated 1 June 2006; State of North
Carolina, County of Cumberland, Office of Register of Deeds, Marriage
Certificate, dated 7 March 1971; and Defense Finance and Accounting Service
(DFAS) Reserve Component (RC)SBP Information [pertaining to the FSM], dated
5 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S.
Army on 4 May 1971.  He and the applicant married on 7 March 1972.

2.  The FSM's military service records contain a DA Form 2339 (Application
for Voluntary Retirement), dated 1 February 1993.  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 the individual serving as the Adjutant General at
Fort Leonard Wood, Missouri, both signed the form.

3.  On 3 March 1993, the FSM completed a DA Form 4240 (Data for Payment of
Retired Army Personnel).  Part V (Survivor Benefit Plan Election) of the DA
Form 4240 shows, in pertinent part, that the FSM indicated in Items 14 and
14a that he was married and had dependent children.  In Items 15 and 16 the
FSM indicated that he elected spouse and dependent children coverage based
on the full amount of his retired pay.  The FSM and counselor (or another
witness) each affixed their signatures in Part VI (Certification) of the DA
Form 4240.  In addition, Part VII (Survivor Benefit Plan Certificates),
Item 23 of the DA Form 4240 indicates that the FSM had been fully counseled
on the benefits afforded under SBP.  Since the FSM did not elect an annuity
based on a reduced portion of his retired pay or decline coverage for his
spouse, Item 24 of the DA Form 4240 was not required to be completed by the
spouse.

4.  The FSM's military service records also contain a Supplemental SBP
Election for Spouse/Former Spouse.  This document shows, in pertinent part,
that the FSM indicated that he declined supplemental SBP coverage for his
spouse.  The FSM and counselor (or another witness) each affixed their
signatures to this document on 3 March 1993.

5.  The FSM retired from the Army on 1 June 1993, after serving honorably
on active duty for a total of 22 years and 27 days.

6.  On 12 October 2001, the Circuit Court of Pulaski County, Missouri,
ordered, adjudged, and decreed that the marriage between the applicant and
FSM was dissolved.  At that time, the court found that there was one child
born during the marriage and that the child was emancipated.  This document
shows, in pertinent part, that the court awarded the applicant "…receive
"FIFTY PERCENT (50%) of [the FSM's] Military Retirement through department
of the United States Army and it would be equitable that [the FSM] provide
Survivor Benefits Plan designating [the applicant] as the beneficiary on
said retirement and [the FSM] is to pay the premium on said plan;…"

7.  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.

8.  There is no evidence of record to show that the applicant made a
written request of deemed election to DFAS for former spouse SBP coverage
based on the divorce decree.
9.  The FSM died on 30 April 2006.  The Certificate of Death shows, in
pertinent part, that the FSM was married at the time of his death to D____
L___ K_____.

10.  The applicant provides documentation that shows, in pertinent part,
she was married to the FSM for most all of his military career, the
marriage lasted for nearly 30 years, and she was to be designated as the
beneficiary of the FSM's SBP.  The applicant also provides a DFAS (RC)SBP
Information sheet pertaining to the FSM's SBP account that shows, in
pertinent part, that he had spouse coverage, designated the applicant (by
name) as the SBP annuitant, and was paying SBP premiums at the time of his
death.

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 one year of the divorce.  The evidence of record also shows that the
FSM did not change the name of his designated SBP beneficiary;
specifically, it remained that of his former spouse.

3.  The applicant contends that she notified the DFAS in October 2001 of
her former spouse SBP entitlement by deemed election.  Although the Board
does not question the veracity of the applicant's statement, the FSM's
retired pay record maintained by the DFAS fails to substantiate that such
an election was deemed to have been made in writing.

4.  It is logical to presume that if the FSM had intentions to disregard
the court's decree to continue SBP protection for his former spouse, he
would have discontinued premium payments or changed the name of his
designated SBP beneficiary.  However, the evidence of record shows that the
FSM did not do this, even after he remarried.  Therefore, it appears the
FSM believed that 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 and in his designating the applicant (by-
name) as the SBP annuitant.  The fact that SBP premiums continued to be
deducted from the FSM's retired pay through the date of his death and that
the applicant was designated the SBP annuitant appear to be the overriding
issues in this case.  However, the evidence of record fails to show that
either the FSM or the applicant took the necessary action to change the
FSM’s SBP election from spouse to former spouse coverage within one year of
the divorce.  Therefore, relief can not be granted in this case, at this
time.

5.  The evidence of record shows the FSM remarried, although the date is
unknown.  Consequently, when the FSM remarried, the second spouse became
eligible for the spouse SBP coverage, as SBP coverage is governed by
category. At the one-year anniversary of their marriage, the FSM's spouse
acquired a vested interest in the SBP as the FSM's legal beneficiary.
There is no evidence of record to show that the FSM's spouse (i.e., his
widow) applied for and is receiving the SBP annuity.  Nonetheless, absent
one of the following documents: (1) a statement from the FSM's widow
asserting that she agrees to renounce payment of the SBP annuity in
perpetuity in favor of the applicant; (2) a marriage certificate showing
they were married for less than one year; or (3) a court order from a court
with proper jurisdiction over the widow directing the government to pay the
SBP annuity to the applicant and not the widow, the Board will not take any
action to prevent the lawful beneficiary from receiving those benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS__  ___PHM_  __DWS _  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.




                                  _____Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008327                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19930531                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 12                  |
|DISCHARGE REASON        |Retirement for Length of Service        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0100.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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