RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060015292


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Chester A. Damian             |     |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 he
changed his Reserve Component Survivor Benefit Plan (RCSBP) spouse coverage
to former spouse coverage.

2.  The applicant states the FSM enrolled her in the RCSBP in 1994 and he
never changed anything as he still wanted her to receive it.  They did
divorce, and a few months later the FSM was diagnosed with cancer.  He came
back home and had treatments and surgery.  She took care of him in and out
of hospitals.  They loved each other, and she was there for him until his
death.

3.  The applicant provides their marriage certificate; the FSM’s death
certificate; the FSM’s Honorable Discharge Certificate, dated 1 November
1994; the FSM’s Retired Reserve certificate of recognition; and the FSM’s
last will and testament.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant did not know she was to make a deemed
election of the RCSBP within one year of the divorce.  During the time she
was to make the deemed election, she was taking care of the FSM through
treatment and surgeries.  As can be seen from the FSM’s last will and
testament, he left everything he owned to the applicant.

2.  Counsel provides a U. S. Army Human Resources Command – St. Louis, MO
letter dated 29 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 November 1951.  He married the applicant on
 24 March 1978.  After having had prior service, he enlisted in the Army
National Guard on 17 February 1979.

2.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated 10 May 1994.  On 3 June 1994, he completed a DD Form
1883 (Survivor Benefit Plan Election Certificate) and indicated he elected
to participate in the RCSBP for spouse only coverage, option C, full base
amount.

3.  On 21 May 2001, the FSM and the applicant divorced.  The divorce decree
does not mention the SBP.

4.  In January 2006, the FSM signed his last will and testament.  He
appointed the applicant as the executrix of his last will and testament and
directed she was to serve as such without bond and without the necessity of
accounting to any court or tribunal whatsoever.  He bequeathed to the
applicant everything he owned.

5.  On 22 February 2006, the FSM died at age 54.  His death certificate
shows his marital status as divorced and the applicant as the informant.

6.  Records at the Defense Finance and Accounting Service show that no one
is receiving the SBP annuity.

7.  Public Law 95-397, 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.  If death
occurs before age 60, the RCSBP costs for options B and C are deducted from
the annuity.

8.  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.

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

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)(3) incorporates the provisions
of the USFSPA relating to the SBP.  It permits a person to elect to provide
an annuity to a former spouse.  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.  The member must
disclose whether the election is being made pursuant to the requirements of
a court order or pursuant to a written agreement previously entered into
voluntarily by the member as part of a proceeding of divorce.

12.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to
make a written request that an SBP election of former spouse coverage be
deemed to have been made when the former spouse is awarded the SBP annuity
incident to a proceeding of divorce.  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.  The FSM elected to participate in the RCSBP for spouse only coverage in
June 1994.  He and the applicant divorced in May 2001.  The divorce decree
did not mention the SBP; therefore, the applicant did not have the option
of requesting a deemed election of the SBP.

2.  Nevertheless, the applicant’s contention that the FSM never changed
anything [regarding the RCSBP] as he still wanted her to receive it, and
that they loved each other and she was there for him until death, appears
to be corroborated by the FSM’s last will and testament and by his death
certificate.  The applicant was listed as the informant on the FSM’s death
certificate, and the FSM bequeathed to the applicant everything he owned.

3.  The Defense Finance and Accounting Service has confirmed that no one is
currently receiving the FSM’s SBP annuity.

4.  Based on the evidence in this case, it would be equitable to correct
the FSM’s records to show he changed his RCSBP spouse coverage to former
spouse coverage in the manner prescribed by law.

BOARD VOTE:

__lds___  __jrs___  __cad___  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 he made a written request to change his RCSBP spouse
coverage to former spouse coverage on 1 June 2001 and that his request was
received and processed by the appropriate office in a timely manner; and

     b.  paying to the applicant the RCSBP annuity retroactive to the date
of the FSM’s death.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015292                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070605                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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