RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 October 2007
      DOCKET NUMBER:  AR20070000113


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Ann Campbell                  |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Jeffrey 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) election from "spouse" to, "former
spouse" coverage.

2.  The applicant states, in effect, SBP was not changed at the time of
their divorce because words on the SBP application said, "Permanent
Irrevocable."  Her former husband, the FSM, paid premiums into SBP until
his death with the full intent that she, as his former spouse, would
receive his retirement benefits on his death.  Neither he nor she was aware
of any change that was to be made because of the strong language used on
the application for coverage under the SBP.  Her awareness came when she
was notified by DFAS (Defense Finance and Accounting Service) that her ex-
husband had passed and she inquired about what was necessary for her to
start receiving her survivor benefits.

3.  In support of her request, the applicant submits a copy of the FSM's
Retiree Account Statement, with an effective date 2 December 2003, with new
pay due date as of 2 January 2004; a partial copy of the FSM's Survivor
Benefit Pay Election form; a copy of a letter addressed to the applicant
from the DFAS dated 7 February 2005; a copy of the FSM's certificate of
death issued by the State of Alabama; and a copy of the applicant's and the
FSM's final decree of divorce which was filed on 22 December 1992.  On 11
September 2007, the applicant submitted a copy of a letter addressed to the
applicant's daughter by the DFAS dated 16 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 November 1916.  He was inducted into the Army
of the United States on 1 June 1944 and entered active duty on the same
date.  He served in the Pacific Theater of Operations during World War II.
He was honorably separated, for the convenience of the Government, in the
rank of Technician Fourth Grade, on 26 January 1946, and was transferred to
the Enlisted Reserve Corps.

2.  The FSM continued to serve in the Enlisted Reserve Corps until he was
honorably discharged, on 25 March 1948, for the purpose of enlisting in
the Regular Army.  He enlisted in the Regular Army on 26 March 1948 and
continued to serve in the Regular Army until 30 November 1966 when he was
separated, for the purpose of retirement, in the rank and pay grade
Sergeant First Class, E-6.

3.  The FSM and the applicant married on 7 July 1975.
4.  On an unknown date the applicant completed a SBP Election form.  Only
the front-side of the form is available for the Board's review; however,
the FSM reported he was married and had children.  The FSM's Retiree
Account Statement, with an effective date 2 December 2003 and with a new
pay due date of 2 January 2004 shows he elected full SBP coverage (to
provide a 55% annuity amount), for spouse only.

5.  The FSM and the applicant divorced on 21 December 1992.  The SBP is
not mentioned in the final decree of divorce and there is no evidence he
ever remarried.

6.  The FSM died on 16 January 2005.  The death certificate shows his
marital status as divorced and no surviving spouse is listed.

7.  On 7 February 2005, the applicant received a letter from the DFAS.  In
this letter she was advised, "In closing the retired pay account of H*****
M******, it has come to our attention that charges for the Survivor Benefit
Plan were being deducted from his retired pay up until the time of death.
Additionally, we have been informed that the above member was not married
at the time of his death."  She was asked to furnish a copy of the divorce
decree or death certificate so that a refund of costs for the SBP could be
included with the arrears payment (emphasis added).

8.  There is no evidence that during his retirement years he took any
action to have deductions from his retired pay stopped for any reason.

9.  On 7 September 2007 an inquiry was made to the DFAS Liaison Officer to
determine if in closing the retired pay account of the deceased FSM, was
the money that had been deducted from his retiree pay account for an SBP
annuity ever been returned to anyone and to determine if anyone was
receiving an annuity.

10.  On 10 September 2007, the DFAS Liaison Officer responded to the
inquiry and stated, in effect, that no SBP annuity was being paid to
anyone.  He further stated that the DFAS had paid back 6 years of SBP costs
to the children.  The DFAS Liaison Officer did confirm that the retired FSM
paid his SBP until his death.

11.  The copy of the letter the applicant submitted on 11 September 2007
shows, despite an error in the identification of the person about whom they
were writing that no arrears of pay would be issued for the FSM's
retirement pay account.  There was a SBP debt on the account of $265.01.  A
document with a title, "Adjustment Worksheet – SBP Costs," was attached to
the letter that was sent to the deceased FSM's daughter explaining the
$265.01 debt.  The correct name and social security account number appear
on the worksheet.

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.
The SBP provided that military members on active duty 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, and are
irrevocable except as provided for by law.

13.  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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.

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

15.  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.

16.  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 election.

17.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions
of the USFSPA relating to the SBP.  It permits a person who, incident to a
proceeding of divorce, is required by court order to elect to provide an
annuity to a former spouse to make such an election.  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.  The applicant's statement that the SBP was not changed at the time of
their divorce because words on the SBP application said, "Permanent
Irrevocable" is a highly credible statement and has merit.

2.  The evidence shows, her former husband, the FSM, paid premiums into SBP
until his death with apparently the full intent that she, as his former
spouse, would receive his retirement benefits on his death.  Equally
credible is her statement that neither she nor the FSM was aware of any
change that was required to be made because of the strong language used on
the application for coverage under the SBP.

3.  Although the SBP is not mentioned in the divorce decree, the FSM
allowed the continued collection of premiums for SBP coverage, for spouse
only, until his death.  It is reasonable to presume his continuing to pay
SBP premiums signaled his intent to provide an SBP annuity for the
applicant.

4.  The evidence now shows that 6 years SBP costs were returned to the
children.

5.  Based on the FSM's actions, or inaction, it would be equitable to
correct his records to show he changed his SBP coverage from "spouse," to
"former spouse" coverage, on 22 December 1992, the day after their divorce.

6.  Based on the evidence in this case, it would be equitable, to establish
a SBP annuity for the applicant with an effective date of 16 January 2005,
the date of the death of her former spouse.

BOARD VOTE:

__amc___  ___LD___  ___JR__  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 made a written request to the DFAS on 22 December
1992 to change his SBP coverage from spouse to former spouse coverage and
to show his request was received and processed by the appropriate office in
a timely manner;

      b.  advising the applicant that the Defense Finance and Accounting
Service will be instructed to perform a review of the deceased FSM's
retiree pay record, with particular emphasis on collections related to
SBP costs and collect any SBP costs due, for benefits payable to the
former spouse, or recoup the 6-years SBP costs that were allegedly paid
back to the FSM's children; and

      c.  paying the applicant an annuity based upon the above corrections
retroactive to the date of the FSM's death, 16 January 2005.




                                  ___   Ann M Campbell_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070000113                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071002                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |137.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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