RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060016424


      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 Survivor Benefit Plan (SBP) election to former spouse coverage.

2.  The applicant states that the divorce decree awarded her the SBP.  The
FSM did not stop SBP payments even after their divorce.  She was never
informed that she could change his SBP election, or she would have done it.

3.  The applicant provides a copy of her military identification card; the
divorce decree; and the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 20 September 1972.  He and the
applicant married on 30 September 1974.

2.  On 20 August 1992, the FSM completed a DA Form 4240 (Data for Payment
of Retired Army Personnel) and indicated he elected to participate in the
SBP for spouse and children coverage, full base amount.

3.  The FSM retired on 1 October 1992.

4.  The FSM and the applicant divorced on 26 January 2001.  The divorce
decree states in pertinent part, “It is further ORDERED that defendant is
and shall be deemed as irrevocable beneficiary of the Survivor’s (sic)
Benefit Plan (SBP) and the plaintiff is ORDERED, at all times, to designate
defendant as a former spouse for said purposes, to timely execute all
documents necessary to maintain defendant’s designation as a former spouse
for such purposes, and to do nothing to reduce or eliminate that benefit to
defendant.”

5.  The FSM remarried on an unknown date.  He died on 22 August 2006.  On
14 May 2007, the Defense Finance and Accounting Service (DFAS) informed the
Board analyst that the FSM’s widow is getting the SBP annuity.  However,
DFAS also stated that the widow’s Dependency and Indemnity Compensation
(DIC) is more than the SBP annuity.

6.  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.

7.  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.

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

9.  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.

10.  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.

11.  Title 10, U. S. Code, section 1450(e)(1) provides that if an SBP
annuity is not payable because the DIC payment is greater, then any amount
deducted from the retired pay of the deceased member shall be refunded to
the surviving spouse or former spouse.

12.  Title 10, U. S. Code, section 1450(k)(1) states that, if a surviving
spouse or former spouse whose annuity has been adjusted under subsection
(c) subsequently loses entitlement to DIC because of remarriage of the
spouse or former souse, and if at the time of such remarriage the surviving
spouse or former spouse is 55 years of age or more, the amount of the
annuity of the surviving spouse or former spouse shall be readjusted,
effective on the effective date of such loss of DIC, to the amount of the
annuity which would be in effect with respect to the surviving spouse of
former spouse if the adjustment under subsection (c) had never been made.
Subsection 1450(k)(2) states a surviving spouse or former spouse whose
annuity is readjusted shall repay any amount refunded by reason of the
adjustment.

DISCUSSION AND CONCLUSIONS:

1.  It is recognized that the divorce decree awarded the SBP to the
applicant and specifically ordered the FSM to timely execute all documents
necessary to maintain the applicant’s designation as a former spouse SBP
beneficiary.  Unfortunately, it appears the FSM did not take the action
directed by the court, nor did the applicant make a request for a deemed
election of the SBP.

2.  Since the FSM died with spouse SBP coverage in effect, his legal spouse
at the time of his death is the lawful beneficiary of his SBP.  Although
she may be currently drawing DIC instead of the SBP annuity, if in the
future she should lose her DIC eligibility it is possible she would regain
her eligibility for the SBP annuity.  The Board will not take any action to
prevent the lawful beneficiary from becoming eligible to receive those
benefits.  To do so would constitute an unconstitutional taking without due
process of law.

3.  The Board may not divest the FSM’s widow of her interest in the SBP
without an order from a State court of competent jurisdiction over the
marriage of the applicant and the FSM.  This court action would have to
include the FSM’s widow as a party in order to protect her property
interest and rights.  If the court after a proceeding determines that the
applicant is the proper SBP beneficiary, the applicant can apply to the
Board for reconsideration.  In the alternative, the Board may reconsider
the applicant’s request if she obtains a notarized, sworn affidavit from
the FSM’s widow renouncing her right to the SBP payment.

4.  Regrettably, there is insufficient evidence that would warrant granting
the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jrs___  __cad___  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.




                                  __Linda D. Simmons
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016424                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070605                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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