RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20060017616


      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. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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) coverage to former spouse coverage.

2.  The applicant states she has a court order stating she was to get 55
percent of the FSM’s retirement.  She was not instructed to do anything
else, so she feels as though she should get her entitlement.

3.  The applicant provides a 15 September 2005 letter to the Defense
Finance and Accounting Service (DFAS); their divorce decree; and the FSM’s
death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 10 January 1953.  After having had
prior service, the FSM enlisted in the Regular Army on 4 January 1960.  He
retired on 1 July 1980.  Records at DFAS show he elected to participate in
the SBP at that time for spouse coverage.

2.  The FSM and the applicant divorced on 14 May 1984.  A court order
regarding alimony, dated 3 June 1983 but effective 20 April 1983, states in
pertinent part that the FSM would pay the premium of $87.66 per month
maintaining the survivor benefits for the applicant in full force and
effect and would take all steps and sign all necessary documents [to
maintain her as the beneficiary].

3.  Records at DFAS show the FSM had not paid SBP premiums from 1984
through his death.  The FSM died on 29 October 2004.  His death certificate
shows his marital status as divorced.

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.

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.

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 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.

10.  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 and the applicant divorced in May 1984, prior to the law that
permitted divorce courts to order SBP coverage without the member’s
agreement.  They were also divorced prior to 19 October 1984, when the law
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.  It is
acknowledged that the applicant may not have been aware of this law at the
time.

2.  However, in either case changing the FSM’s SBP election to former
spouse coverage would have been a voluntary action on his part.  The court
could not have directly ordered him to make the change.

3.  As the FSM did not pay SBP premiums after the divorce, it appears it
was his intention not to voluntarily comply with the court order to provide
the applicant the benefits of the SBP.
4.  Regrettably, there is insufficient evidence that would warrant granting
the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jrm___  __tmr___  __jcr___  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.




                                  __Jeanette R. McCants_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017616                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070731                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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