RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060014711


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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
timely elected to change 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 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
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
cannot claim SBP benefits from the DFAS.

3.  The applicant provides a copy of State of Washington, Department of
Health, Washington State Certificate of Death, dated 25 January 2006;
Petition For Dissolution of Marriage, dated 17 January 1996, accompanied by
a Marriage Certificate, dated 5 May 1954; Defense Finance and Accounting
Service (DFAS) Retiree Account Statement dated 3 January 2006; Verification
For Survivor Annuity, dated 8 February 2006, the FSM’s DD Form 214; a power
of attorney her son; and court documents appointing her son executor of the
FSM’s estate.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S.
Army on 25 October 1949.  He and the applicant married on 4 February 1954.

2.  The FSM's military service records contain a DA Form 2339 (Application
for Voluntary Retirement), dated 17 July 1979.  Item 32 (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 Lewis, Washington, both signed the form.




3.  On 8 August 1979, the FSM completed a DA Form 4240 (Data for Payment of
Retired Army Personnel).  Part IV (Survivor Benefit Plan Election) of the
DA Form 4240 shows, in pertinent part, that the FSM indicated in Item 13
that he was married.  In Items 15 and 16 the FSM indicated that he elected
spouse coverage based on the full amount of his retired pay.  The FSM and
counselor (or another witness) each affixed their signatures in Part VIII
(Certification) of the DA Form 4240.  In addition, because the FSM did not
elect an annuity based on a reduced portion of his retired pay or decline
coverage for his spouse, Part IX (Survivor Benefit Plan Certificates) of
the DA Form 4240 was not required to be completed by the spouse.

4.  The FSM retired from the Army on 31 August 1979, after serving
honorably on active duty for a total of 29 years, 10 months, and 6 days.

5.  On 18 April 1996, the Superior Court of Washington, County of Benton,
ordered, adjudged, and decreed that the marriage between the applicant and
FSM was dissolved.  The petition for divorce by the FSM, dated 17 January
1996, shows, in pertinent part, he agreed to give the applicant “Military
Survivor Benefits.”

6.  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.

7.  There is no evidence of record to show that the applicant made a
written request of deemed election to DFAS for a deemed election of former
spouse SBP coverage based on the divorce decree.

8.  The FSM died on 22 January 2006.  The Certificate of Death shows, in
pertinent part, that the FSM was divorced at the time of his death.

9.  The applicant provides documentation that shows, in pertinent part, she
was married to the FSM for most of his military career, the marriage lasted
for nearly 42 years, and she was to be designated as the beneficiary of the
FSM's SBP.  The applicant also provides a DFAS Retiree Account Statement
pertaining to the FSM's SBP account that shows, in pertinent part, he had
spouse coverage and was paying SBP premiums at the time of his death.




10.  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 may or
may not be part of a court order for divorce, dissolution, or annulment
(Title 10, U.S.C. 1450 (f) (2) (A) &(C).

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.  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.

12.  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.  However, 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.  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.  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 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.

4.  In establishing the SBP, it was the intent of Congress to provide for
those spouses who supported the military member for the majority of his or
her military career.  The applicant was married to the FSM for nearly 42
years which included all but about four years of his 29-year military
career.  The evidence of record shows that the court apparently awarded the
former spouse the SBP beneficiary status in the divorce decree entered into
by the applicant and FSM.  Therefore, as a matter of equity, it would be
appropriate to correct the record to change the SBP coverage for the former
spouse, as requested by the applicant at this time.

BOARD VOTE:

____YM _  ___LMD_  ___GJP__  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:

           a.  showing that the FSM timely elected to change his SBP
beneficiary from spouse to former spouse on 1 February 1996 and that DFAS
timely processed this change in election; and

      b.  that the applicant be paid the SBP annuity as the former spouse
retroactive to the date of the FSM's death.





                                  ___Yolanda Maldonado____
                                            CHAIRPERSON







                                    INDEX

|CASE ID                 |AR20060014711                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |MR.SCHWARTZ                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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