RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 March 2007
      DOCKET NUMBER:  AR20060014084


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 decision rendered in Army
Board for Correction of Military Records (ABCMR) Docket Number
AR20050013511 on     9 May 2006 be modified to show Survivor Benefit Plan
(SBP) premiums from September 2001 through September 2005 were waived with
premiums to begin October 2005.

2.  The applicant states that he provided a copy of his divorce decree to
Retired Pay Operations in February 2005.  When it was posted, he was
notified by an advisor from Retired Pay Operations that the SBP premiums
would stop being deducted and that his former spouse would be removed as
the SBP beneficiary due to her not applying for former spouse status.  He
received those premiums, in the amount of $4,301.00, in April 2006.
According to Retired Pay Operations, the regulation stipulates there is a
one-year window from the effective date of the divorce to apply for former
spouse status.

3.  The applicant states that in September 2005 he received a summons to go
to court for contempt due to the fact that his former spouse had been
removed as the SBP beneficiary.  He did not remove her.  Retired Pay
Operations removed her because she had not applied for former spouse
status.  In order to keep from being held in contempt of court he had to
request correction of his military records to have her re-instated.  When
he submitted the application, he was advised by Retired Pay Operations that
it probably would not make a difference because it had been four years
since the divorce and his former spouse had not provided a written request
for former spouse coverage in a timely manner.

4.  The applicant states that the [Record of Proceedings] indicated there
was an unsigned Domestic Relations Order which showed he agreed to keep his
former spouse as the SBP beneficiary.  He contends that an unsigned
document which should have been signed by a judge should not have been used
as evidence to determine his approval for that correction.  The Board
stated that his former spouse would be reinstated as the beneficiary
retroactive to the date of their divorce in September 2001.  He does not
understand how that is right.  Numerous advisors at Retired Pay Operations
told him numerous times that if anything the effective date for
reinstatement should be when his former spouse requested former spouse
status, which was not until September 2005.

5.  The applicant states that the Record of Proceedings indicated an SBP
election form was never received.  He elected an SBP beneficiary when he
retired at Fort Lewis, WA.  He feels all SBP premiums from September 2001
through September 2005 should be waived and not restarted until October
2005. When he divorced, he lost half of his military pension and a sum
equal to one half of his Department of Veterans Affairs disability pension.
 To pay this debt will definitely be a financial burden to overcome, as he
depends on what pension he gets for a monthly income.

6.  The applicant provides ABCMR Docket Number AR20050013511 dated
9 May 2006; and a Review Boards Agency, Support Division, St. Louis letter
dated 22 May 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant entered active duty on 26
April 1983 in an Active Guard Reserve status.  His notification of
eligibility for retired pay at age 60 (his 20-year letter) is dated 6
September 1994.  He apparently did not make a Reserve Component SBP (RCSBP)
election at that time.

2.  On 1 April 1997, the applicant retired after completing over 20 years
of active duty.  Records at the Defense Finance and Accounting Service
(DFAS) indicate they never received a DD Form 2656 (Data for Payment of
Retired Personnel), which would have included the applicant’s SBP election.

3.  The applicant divorced on 25 July 2001.  The divorce decree assigned to
the applicant's former spouse 50 percent of his military pension and
ordered the applicant to designate his former spouse as the irrevocable
beneficiary of his SBP.  The unsigned copy of the Qualified Domestic
Relations Order provided by the applicant stated the same thing and noted
the applicant agreed to make the necessary election in a timely manner.

4.  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.  Failure to make an
election prior to the effective date of retirement resulted in a default to
automatic spouse coverage.

5.  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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.

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

7.  Public Law 98-525, enacted 19 October 1984, provided that a former
spouse could request a deemed election within one year of the court order
requiring SBP to be established on the former spouse’s behalf provided the
member agreed to provide coverage.

8.  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.

9.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of
the USFSPA relating to the SBP.  It 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.  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 after the date of the decree of
divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.

2.  The applicant stated he received his back SBP premiums, in the amount
of $4,301.00, in April 2006.  However, he also stated he had been taken to
court in September 2005 for removing his former spouse as his SBP
beneficiary.  It appears likely that he should have realized that a court
ruling might have required him to live up to the order of the court to
retain her as his SBP beneficiary.  The Qualified Domestic Relations Order
provided by the applicant with the original case may not have been signed;
however, the divorce decree WAS signed, and the court ordered that HE
designate his former spouse as the irrevocable beneficiary of his SBP.  The
court did not order that SHE make a deemed election (which is provided for
by law as a safeguard in cases where the servicemember fails to take the
court-ordered action).

3.  Even if the applicant made a typographical error, and the back premiums
were paid in April 2005 and not April 2006, the fact he was taken back to
court five months later should have made him realize that he might have to
repay those premiums.


4.  The applicant states that the Record of Proceedings indicated an SBP
election form was never received but that he had elected an SBP beneficiary
when he retired at Fort Lewis, WA.  This discrepancy does not appear to be
germane to his current argument.  If the election form was never received,
SBP coverage automatically defaulted to spouse coverage.  If he elected
spouse coverage, he also would have received spouse coverage.

5.  The Army is not liable for the erroneous actions of its officers,
agents, or employees, even though committed in the performance of their
duties.  It appears DFAS personnel several times erroneously advised the
applicant that no action would be taken on his ABCMR application because
his former spouse had not “applied for former spouse status” in a timely
manner.

6.  However, as the applicant acknowledges, in order to keep from being
held in contempt of court he had to request correction of his military
records to have her re-instated as his SBP beneficiary.  It is not
reasonable to presume he believed the court would not order her
reinstatement retroactive to the date the court originally ordered him to
make her the beneficiary.  It is also not reasonable to presume he believed
the ABCMR would not correct his records (at his request) to make them
correct retroactive to the date his divorce decree ordered him to designate
her as the irrevocable beneficiary of his SBP.

7.  It is understood that when the applicant divorced he lost half of his
military pension and a sum equal to one half of his Department of Veterans
Affairs disability pension.  However, as he knew he would have to pay for
the SBP, and did pay for the SBP for four or five years, and as he was
previously refunded a major portion of the amount currently owed by him,
there is insufficient evidence that would warrant granting the relief
requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__le____  __lmb___  __mjf___  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.




                                  ____Lester Echols_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014084                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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