RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 June 2007
      DOCKET NUMBER:  AR20060016263


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. LaVerne M. Douglas            |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms Rea M. Nuppenau                |     |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 that the records of her deceased former spouse,
a former service member (FSM), be corrected to show she made a request for
a deemed election of his Survivor Benefit Plan (SBP).

2.  The applicant states that she did not know she had to do anything and
thought the FSM had taken care of the matter as stated in the divorce
decree.  He listed her as both his former spouse and his spouse on his DD
Form 2656 (Data for Payment of Retired Pay) and checked that he elected
spouse SBP coverage.  She believes that was a human error.  He states that
after he had completed the paperwork he called her to say all was taken
care of.  She has not heard from him since.

3.  The applicant provides their divorce decree; the FSM’s DD Form 1883
(Survivor Benefit Plan Election Certificate); the FSM’s DD Form 2656, and
the FSM’s obituary.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 4 July 1943.  He enlisted in the Army National
Guard in June 1961.  He and the applicant married on or about 17 August
1963.  In June 1964, he was commissioned as a second lieutenant in the Army
National Guard.

2.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated 8 March 1983.  On 8 March 1983, he completed a DD
Form 1883 and elected to participate in the Reserve Component SBP (RCSBP)
for spouse and children coverage, full base amount, option C.

3.  On 14 November 1990, the FSM and the applicant divorced.  The divorce
decree states in pertinent part that the applicant was to receive and the
FSM was to elect to participate in the SBP to ensure maximum benefits to
the applicant in the event of the death of the FSM.

4.  The FSM completed a DD Form 2656 on 28 March 2002.  In Section V of
this form, he designated the applicant, listing her as his former spouse,
as his beneficiary for unpaid retired pay.  In Section VIII, he listed the
applicant as his spouse.  In Section IX, he indicated that he elected to
participate in the SBP for spouse only coverage, full base amount.

5.  The FSM married V___ on 19 July 2006.  On 10 December 2006, the FSM
appointed his wife as executrix of his estate and bequeathed to her “all of
the property to which I may die seized and possessed, whether the same be
real, personal, or mixed, and regardless of where the same may be situated.

6.  The FSM died on 9 April 2007.

7.  In the processing of this case, the Board analyst contacted the widow
in an effort to obtain her marriage certificate to the FSM.  The widow
provided their marriage certificate and the FSM’s death certificate.  She
also noted that she was actively seeking what she is entitled to as the
FSM’s widow.

8.  On 9 May 2007, the FSM’s widow submitted a DD Form 2656-7 (Verification
for Survivor Annuity) to the Defense Finance and Accounting Service.
Section 3b (Are There Children under Age 23 or Incapacitated of the
Deceased Member) of the form is blank.

9.  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.  It required a 2-year
waiting period for new spouse eligibility following post-retirement
marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting
period to 1 year following post-retirement marriage.

10.  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.  If death does not occur before age 60, the RCSBP costs for
options B and C are deducted from the member’s retired pay.  Once a member
elects either Options B or C in any category of coverage, that election is
irrevocable.  Option B and C participants do not make a new SBP election at
age 60.  They cannot cancel SBP participation or change options they had in
RCSBP – it automatically rolls into SBP coverage.

11.  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.

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

13.  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.

14.  Title 10, U. S. Code, section 1447(7) defines “widow” to mean the
surviving wife of a person who, if not married to the person at the time he
became eligible for retired pay (A) was married to him for at least one
year immediately before his death or (B) is the mother of issue by that
marriage.

15.  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 of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  When the FSM completed his DD Form 1883 in March 1983, he elected to
participate in the RCSBP for spouse and children coverage.  When he and the
applicant divorced in November 1990, the divorce decree awarded the
applicant the SBP, and the FSM was ordered to elect to participate in the
SBP to ensure maximum benefits to the applicant in the event of his death.

2.  The FSM had one year from the date of divorce to change his RCSBP
coverage to former spouse coverage.  He failed to do so, and the applicant
failed to make a request for a deemed election of the RCSBP within one year
of the divorce as required by law.

3.  However, it appears that it was the FSM’s intent to provide the SBP to
the applicant.  When he completed his DD Form 2656 in March 2002 he listed
the applicant as both his former spouse and as his spouse on the form and
indicated that he elected to participate in the SBP for spouse only
coverage, full base amount.  However, because he had previously elected to
participate in the RCSBP, he was not to have made a standard SBP election
as his RCSBP election rolled into the standard SBP.  And, he had failed to
change his RCSBP coverage to former spouse coverage within one year of the
divorce.
4.  Nevertheless, the FSM married V___, his widow, on 19 July 2006.  The
FSM died on 9 April 2007.  Notwithstanding his widow informing the Board
analyst that she was actively seeking what she is entitled to as the FSM’s
widow, she is not entitled to the SBP as she was not married to him for the
required 1-year period and there is no evidence to show that children were
born of her marriage to the FSM.

5.  Therefore, it would be equitable to correct the FSM’s records to show
the applicant made a request for a deemed election of the SBP within the
proper time frame and that she be paid the SBP annuity.

BOARD VOTE:

__lmd____  __eem___  __rmn___  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
showing that the applicant made a request for a deemed election of the
RCSBP on 1 December 1990; that her request was received and processed by
the appropriate office in a timely manner; and that she be paid the SBP
annuity for which she is now eligible as a result of this correction.




                                  __LaVerne M. Douglas__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016263                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070612                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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