RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 December 2007
      DOCKET NUMBER:  AR20070007001


      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:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Sherry J. Stone               |     |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 his Survivor Benefit Plan (SBP)
election be changed from "Spouse" to "Former Spouse" coverage.

2.  The applicant states, in effect, that when he retired, he elected full
SBP coverage and has been paying the premiums since that time.  He claims
that in November 2005, he and his wife divorced and she was authorized to
receive his SBP coverage as a former spouse.  He states that he was
recently informed by the Defense Finance and Accounting Service (DFAS) that
his wife was required to have made an election in order to receive SPB
coverage as a former spouse and that she had to have accomplished this
within 1 year of the divorce.  He states that since the divorce was final,
he has continued to pay SBP premiums for his former spouse; however, his
June 2007 Retiree Account Statement indicated his SBP premium collection
was stopped because there was no election reflected on his account.  He
states that when he called DFAS, he was told his ex-wife had not made an
election and he was unaware that he could have done this for her. He states
that his divorce decree in fact states it was his responsibility to do so
and it is his desire that his former spouse received the SBP coverage and
not be punished for his error.

3.  The applicant provides his Divorce Decree Pension Order, Separation
Document (DD Form 214), and Retiree Account Statement (June 2007) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he was released from active duty for
the purpose of length of service retirement on 30 September 1984.  At the
time, he held the rank of master sergeant and had completed 22 years and 3
days of active military service.

2.  On 3 July 1984, during his retirement processing, the applicant
completed a Data for Payment of Retired Army Personnel (DA Form 4240).  In
this document, he declined SBP coverage.

3.  Defense Finance and Accounting Service (DFAS) records shows that on
1 May 1992, the applicant elected full SBP "Spouse" coverage and listed his
spouse, now former spouse, as beneficiary.

4.  On 4 November 2005, the applicant and his former spouse, who were
married on 16 December 1967, were divorced.  On 6 January 2006, the Circuit
Court for Frederick County, Maryland, issued a Pension Order that required
the applicant to provide SBP coverage for his former spouse and to comply
with this requirement within one year of the divorce.  The Pension Order
also stated that the filing of the Pension Order with DFAS should be
treated as a deemed election of full benefits under the SBP.

5.  DFAS records show that the applicant remarried on 21 May 2007.

6.  A Retiree Account Statement issued to the applicant on 1 June 2007
indicated his SBP premium of $152.77 would stop being collected.  It also
contained an SBP note that indicated that no SBP election was reflected on
his account.

7.  On 22 October 2007, the applicant submitted an SBP Election Change
Certificate (DD Form 2856-6) in which he elected to increase his existing
level of coverage up to full retired pay based on his remarriage.  He
elected Spouse Only coverage and listed his current spouse in Item 11
(Spouse's Name).

8.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his record to show he elected to
change his Spouse SBP coverage to Former Spouse coverage in conjunction
with his
4 November 2005 divorce from his former spouse was carefully considered and
found to have merit.

2.  By law, SBP may be awarded to a former spouse incident to a proceeding
of divorce.  If the former service member does not voluntarily request
former spouse coverage, a deemed election may be made by the former spouse
within 1 year of the divorce.

3.  The evidence of record confirms that Former Spouse SBP coverage was
directed in the divorce degree of the applicant and his former spouse.  It
is also clear that the applicant believed this coverage had been recorded
based on the continued collection of SBP premiums.  The record further
shows that the Pension Order issued by the court also directed that the
filing of the Pension Order at DFAS should be considered a deemed election
by the former spouse.

4.  It is clear that the applicant intended to comply with the SBP
directive contained in the Pension Order issued in conjunction with his
divorce at the time and that he thought this had been accomplished based on
the continued collection of SBP premiums until 1 June 2007, when he
discovered the election change had not been accomplished.  It is further
clear that he still intended to provide this coverage through the date of
his application to this Board on 7 May 2007.  Therefore, given continued
SBP coverage for the former spouse was ordered in the Pension Order issued
incident to the divorce of the applicant and his former spouse, and because
it is clear the applicant intended to voluntarily comply with this court
order, as evidenced by his application to this Board, it would be
appropriate to correct the record to show that he elected to change his
Spouse SBP election to a Former Spouse election in conjunction with his
4 November 2005 divorce.

5.  Although DFAS records show the applicant remarried on 21 May 2007, and
requested Spouse Only coverage in October 2007, shortly after he applied to
this Board, the applicant's current spouse has no current entitlement to
SBP coverage and would not gain this entitlement until 20 May 2008, one
year after their marriage.  Absent any legal entitlement to SBP coverage
for his current spouse, there appears to be no taking of a property
interest from the current spouse resulting from this Board action to grant
the records correction requested by the applicant.

6.  The applicant is advised that it is his obligation to clarify the lack
of SBP entitlement to his current spouse, which is based on his voluntary
request to correct his record to comply with the court order issued in
conjunction with his divorce from his former spouse.

BOARD VOTE:

__WDP__  __MJF __  _SJS___  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 applicant changed his SBP election from Spouse to Former Spouse
on 4 November 2005, the date of his divorce from his former spouse.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007001                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1984/09/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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