RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 March 2007
      DOCKET NUMBER:  AR20060008070


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Jerome Pionk                  |     |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
and that she be awarded the SBP annuity retroactive to the date of his
death.

2.  The applicant states that she was named beneficiary of the SBP annuity
and unpaid retirement benefits throughout her marriage to the FSM.  She
states that on 17 August 1999, she was incorrectly advised that no
allotment was being deducted from the FSM's pay.  She states that she is
the sole beneficiary under the terms of the FSM's Last Will and Testament
dated 5 September 1986, which was completed 2 1/2 months after her divorce
from the FSM.

3.  The applicant provides in support of her application a copy of her
FSM's Certificate of Death; a copy of a Designation of Beneficiary Unpaid
Retired Pay of Deceased Retired Members; a statement from the Defense
Finance and Accounting Services, Retired Pay Directorate, Cleveland, Ohio
dated 17 August 1999; copies of the FSM's Retiree Account Statement; a copy
of the FSM's Last Will and Testament; a copy of a Verification for Survivor
Annuity dated 13 September 2005; a copy of the FSM's Power of Attorney; a
page from the Army Echoes dated September/October 1986; a copy of the
Decree of Divorce; and a copy of the Agreement Incident to Divorce.

CONSIDERATION OF EVIDENCE:

1.  On 17 May 1942, the FSM accepted an appointment in the Army as a second
lieutenant.  He retired by reason of physical disqualifications on 12
January 1945.

2.  The FSM and the applicant married on 19 August 1951.  At that time, SBP
did not exist.  In 1972, at the time that SBP was established and
announced, the FSM enrolled naming the applicant as his spouse.

3.  On 10 July 1986, the FSM delegated Power of Attorney to the applicant.
The document indicates that the FSM and the applicant would be divorced
after the date of the Power of Attorney; that it was his specific statement
that his Power of Attorney continue in effect and be valid after the date
of said divorce; and that his Power of Attorney may only be revoked by his
death or by written revocation.

4.  On 18 July 1986, the applicant and the FSM divorced.  Neither the
Decree of Divorce nor the Agreement Incident to Divorce addresses the SBP
entitlement.

5.  The FSM's Last Will and Testament bestowed upon the applicant all
rights to all of his properly of every kind and character, real, personal,
or mixed and wherever same may be located and unto her heirs and assigns
forever.  The Last Will and Testament was signed by the FSM on 5 September
1986.

6.  The FSM died on 10 August 2005 and his Certificate of Death lists the
applicant as the informant and his marital status as divorced.  However,
the evidence of record fails to show that the FSM ever changed his SBP
election from spouse to former spouse.

7.  Information obtained from the Defense Finance and Accounting Service
indicates that the FSM continued to pay SBP premiums until his death and no
one is currently receiving the annuity.

8.  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.

9.  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.  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, 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 after the date of
the decree of divorce, dissolution, or annulment.



DISCUSSION AND CONCLUSIONS:

1.  It is clear, based on the documentation submitted by the applicant,
that it was the FSM's intention for her to be the sole and irrevocable
beneficiary of his estate and his SBP.

2.  The applicant and the FSM married prior to the establishment of the SBP
and she remained his spouse until they divorced in July 1986.

3.  Since the FSM continued to pay his SBP premium until his death; since
no one is currently receiving the annuity; and since the FSM bestowed upon
the applicant all rights to all of his property of every kind and
character, real, personal, or mixed, as a matter of equity, it would be in
the interest of justice to correct the FSM's records to show that he
elected former spouse coverage.

4.  In view of the foregoing, it is in the interest of justice to correct
the FSM's records as recommended below.

BOARD VOTE:

___WP__  ___PS __  __JP____  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 the FSM requested his SBP coverage be changed to former
spouse coverage on 1 August 1986 and that his request was received and
processed by the appropriate office in a timely manner; and




      b.  paying to the applicant the SBP annuity retroactive to the date of
the FSM's death.




                                  _____William Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008070                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070313                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000/SURVIVOR BENEFIT PLAN          |
|2.  350                 |137.0400/CHANGE IN ELECTION             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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