RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 December 2007
      DOCKET NUMBER:  AR20070004347


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. James R. Hastie               |     |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 Survivor Benefit Plan (SBP)
election made by her deceased ex-spouse, a former service member (FSM), be
changed from spouse to former spouse coverage.

2.  The applicant states, in effect, that she and the FSM were married for
20 years and part of their divorce agreement was that she would get part of
his retirement pay and would pay for SBP coverage.  She claims she sent a
letter requesting a deemed election requesting the SBP election be changed
from spouse to former spouse was sent to the Defense Finance and Accounting
Service (DFAS) Cleveland Center on 29 March 2001.  She states that she
followed up this letter with a phone call to DFAS Cleveland on 20 April
2001, at which time she was informed they had received the needed
paperwork.  She states her ex-spouse passed away on 14 February 2007, and
when she called DFAS to let them know, she was informed they would send her
the necessary paperwork for her to receive part of the FSM's retirement;
however, they are now claiming she is not eligible for SBP because she is
still listed as spouse instead of former spouse on the SBP record.  She was
then advised to complete and submit an application to this Board.

3.  The applicant provides the following documents in support of her
application:  Divorce Decree; 2001 Deemed Election Letter to DFAS;
Certified Mail Receipt; and FSM Death Certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he initially entered active duty on 24 June
1977, and that he was released from active duty for the purpose of length
of service retirement on 30 November 1997.  At the time, he held the rank
of master sergeant (MSG) and had completed a total of 20 years, 4 months
and 16 days of active military service.

2.  On 22 June 1979, the FSM and applicant were married and on 7 July 2000,
they were divorced.  The Divorce Decree was issued by the Circuit Court of
Dane County, State of Wisconsin.  The property division outlined in the
divorce decree indicated that each party would keep all right and
entitlement to their respective pensions through their place of employment.
 The divorce decree is silent on the matter of SBP benefits.

3.  On 29 March 2001, the applicant submitted a letter to DFAS deeming a
SBP election as a former spouse.

4.  On 14 February 2007, the FSM died.

5.  The DFAS pay records pertaining to the FSM show that the FSM elected
full Spouse SBP coverage.  The applicant remains listed as his spouse and
beneficiary for SBP benefits.  The pay record also confirms that the SBP
premiums continued to be paid through the date of the FSM's death, and that
there was no beneficiary listed on the FSM retired pay account and no
payment of unpaid retired pay was made at the time of or since his death.

6.  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.  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.

7.  When SBP is court-ordered, the former spouse may make a deemed election
within 1 year of the divorce.  When SBP is not court-ordered, the retiree
may make a written request to change spouse coverage to former spouse
coverage voluntarily.  Otherwise, participation remains in a suspended
status until the retiree gains another spouse, who will become the
beneficiary after completing one year of marriage unless the retiree
desires not to resume spouse coverage, which is an option.  There is no
provisions allowing the former spouse to request a deemed election when SBP
is not court-ordered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to a SBP annuity based on the
FSM's death was carefully considered and found to have merit.

2.  By law, a deemed election by a former spouse can only be made when SBP
coverage is directed in a court-order incident to a proceeding of divorce.
Even though the divorce decree provided by the applicant is silent on SBP
coverage or retirement pay, it is clear that both the applicant and FSM
believed the coverage continued for the spouse after their divorce.  This
is evidenced by the applicant's submission of a deemed election within a
year of the divorce, and by the fact the FSM continued to pay SBP premiums
through the date of his death.

3.  Further, there is no evidence the FSM remarried, as evidenced by the
fact he did not modify his SBP election to name a new spouse as beneficiary
prior to his death, and the lack of a named new spouse beneficiary for
unpaid retired pay at the time of the FSM's death, as evidenced by DFAS pay
records.

4.  Based on the evidence of record it appears the FSM clearly intended to
continue to provide SBP coverage for the applicant as a former spouse.
Thus, it would be appropriate to correct the record to show that the FSM
changed his SBP election from Spouse to Former Spouse on the date of his
divorce from the applicant, and to provide the applicant all SBP annuity
payments due from the date of the FSM's death.

BOARD VOTE:

__LDS __  __ECP__  __JRH __  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 the FSM changed his SBP election from Spouse to Former Spouse on
7 July 2000, the date of his divorce from the applicant; and by providing
the applicant all SBP annuity payments due from 14 February 2007, the date
of the FSM's death.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004347                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/04                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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