RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060008544


      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. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Rodney Barber                 |     |Member               |
|     |Mr. David Tucker                  |     |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 she be paid the Reserve
Component Survivor Benefit Plan (RCSBP) annuity based on the enrollment of
her deceased [former] spouse, a former service member (FSM), in the RCSBP.

2.  The applicant states that she should be entitled to her late [former]
husband’s military retirement because she was married to him for 21 years.
She states that the woman, who is now receiving his retirement, divorced
him and was only [re]married to him for a year.  She also states she and
the FSM had two sons, one adopted and one by birth.  She further states
that she is sick, is unable to work, and only has disability income.

3.  The applicant provides photographs of the FSM’s headstone; a
supplemental letter; her marriage license; two blood tests; her Application
for Marriage License; her final divorce decree, dated 4 February 1991; a
partial Separation Agreement; three birth certificates; an adoption decree,
dated 16 October 1971; a final divorce decree, dated 2 February 1994;
Application for Marriage License and marriage license for the FSM and his
last spouse; a letter from his last spouse, dated 30 September 2004; and
the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 April 1945.  He married and divorced a first
spouse. He and the applicant were married on 11 August 1970.

2.  After having had prior service in the Army National Guard and the
Regular Army, the FSM enlisted in the Army National Guard again on 6 June
1984.  He was discharged on 1 May 1989 and was transferred to the U.S. Army
Reserve Control Group (Reinforcement) on the following date.

3.  The FSM's notification of eligibility to receive retired pay at age 60
(20-Year Letter) is not available.  Information obtained from the Defense
Finance and Accounting Service (DFAS) revealed that the FSM completed a DD
Form 1883 (Survivor Benefit Plan Election Certificate) and enrolled in the
RCSBP for spouse only coverage, full base amount, apparently option C.

4.  The FSM and the applicant entered into a Separation Agreement on
28 January 1991.  The applicant provided only the first page of the
Separation Agreement; therefore, it cannot be determined whether RCSBP
coverage was mentioned.


5.  The FSM and the applicant were divorced on 4 February 1991.  The
divorce decree does not mention the RCSBP.

6.  The FSM enlisted in the Army National Guard on 4 June 1991.  He married
T________ on an unknown date and divorced T______ on 2 February 1994.

7.  The FSM was discharged from the Army National Guard and he was assigned
to the Retired Reserve on 1 January 2001.

8.  He remarried T_______ on 24 April 2001.

9.  The FSM died on 19 July 2003.  His death certificate shows he was
married to T______ at the time of his death.

10.  In a 23 March 2005 memorandum from the Transition and Separations
Branch, U.S. Army Human Resources Command, St. Louis, Missouri, the FSM’s
surviving spouse, T______, was certified for the SBP annuity.

11.  Information obtained from DFAS in Cleveland, Ohio, on 4 January 2007
revealed that the FSM's widow, T_____, is receiving the SBP annuity.

12.  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.  Elections are made by
category, not by name.

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a
way for those who had qualified for reserve retirement but were not yet age
60 to provide an annuity for their survivors should they die before
reaching age 60. Three options are available:  (A) elect to decline
enrollment and choose at age 60 whether to start SBP participation; (B)
elect that a beneficiary receive an annuity if they die before age 60 but
delay payment of it until the date of the member’s 60th birthday; (C) elect
that a beneficiary receive an annuity immediately upon their death if
before age 60.

14.  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.

15.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM received his 20-Year Letter on an unknown date.  It appears he
was married to the applicant at that time and elected RCSBP coverage for
spouse, full base amount, option C.

2.  The FSM and the applicant were divorced on 4 February 1991.

3.  The FSM married T______ and divorced her on 2 February 1994.  He
remarried T_______ on 24 April 2001.  After their first anniversary (of the
remarriage), T_______ became the legal beneficiary of the SBP.

4.  The FSM died on 19 July 2003.  At that time, he was married to,
T________, who is now his widow.

6.  The military records at DFAS verify that the FSM’s widow, T______, is
receiving the SBP annuity.  Based on the available evidence, the property
interest of the SBP annuity vested in her after 24 April 2002.  Even if the
applicant’s divorce court awarded her the SBP annuity in 1991 (unknown at
this time), this property interest cannot be taken away from T______
without due process of law.  Therefore, it would be inequitable to grant
the applicant’s request at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JR______  RB______  DT______  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.




                                  Jeffrey Redmann_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060008544                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070118                                |
|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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