RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 September 2007
      DOCKET NUMBER:  AR20070009092


      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 the Survivor Benefit Plan (SBP)
coverage election of her deceased former husband, a former service member
(FSM), be changed from "Spouse Only" to "Former Spouse Only"; and that she
be provided the SBP annuity based on the death of the FSM.

2.  The applicant states, in effect, that she was instructed to send in the
necessary documents for SBP coverage at Fort Rucker, Alabama, and that the
documents were sent on 18 July 1999.

3.  The applicant states that the FSM's agreement that she would receive
SBP benefits was documented in their divorce agreement.  She states that
she was a homemaker to their three children, and a military wife from 1952
until the FSM's retirement on 31 December 1972.

4.  The applicant further states that she fails to understand why there is
a question on who receives the survivor benefits.  She states that she has
always felt that she served her country as well as her husband, and they
were a unit during his military career.  She states her ex-husband died on
25 February 2007, and based on his request, their children and she had his
body returned to Dothan, Alabama, for burial in their joint plot.  She
claims that the FSM thought he would be able to provide for her upon his
death and she trusts his wishes will be fulfilled.

5.  The applicant provides the following documents in support of her
application:  Self-Authored Statement; Direct Deposit Form, dated 20 March
2007; Withholding Certificate for Pension or Annuity Payments (Form W-4P),
dated
20 March 2007; FSM’s Separation Document (DD Form 214); Applicant’s Letter
to DFAS, dated 25 May 2007; Applicant’s Deemed Election Letters to DFAS,
dated 15 June and 18 July 1999; Verification for Survivor Annuity (DD Form
2656-7), dated 20 March 2007; Marriage Certificate; Divorce Decree and
Agreement, dated 7 June 1999; FSM’s Certificate of Death; and Certified
Mail Receipt, dated 15 July 1999.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of
justice to do so.  While it appears the applicant did not file within the
time frame provided in the statute of limitations, the ABCMR has elected to
conduct a substantive review of this case and, only to the extent relief,
if any, is granted, has determined it is in the interest of justice to
excuse the applicant’s failure to timely file.  In all other respects,
there are insufficient bases to waive the statute of limitations for timely
filing.

2.  The FSM’s record shows he served on active duty from April 1944 through
May 1946 and from February 1948 through 31 December 1972, at which time he
was honorably retired, in the rank of sergeant major (SGM), after
completing a total of 26 years, 10 months, and 3 days of active military
service.

3.  On 30 August 1952, the applicant married the FSM.

4.  On 21 December 1972, during his retirement processing, the FSM
completed SBP Election Certificate (DD Form 1883), in which he elected
"Spouse Only" coverage on a reduced portion of his retired pay in the
amount of $350.00. The applicant was listed as his spouse.

5.  On 18 May 1999, the applicant and FSM entered into a separation
agreement.  This agreement contained a property settlement that indicated
that the applicant was entitled to 1/2 of the monthly retirement benefits
and to the full value of survivor's benefits that would become due and
payable at the time of the FSM's death.  It indicated that the FSM and
applicant agreed to execute all documents and fulfill every obligation
required by the United States Government or appropriate division of the
armed services to secure payment of these benefits.

6.  On 9 June 1999, a divorce decree issued by the Circuit Court of Houston
County, Alabama, approved the terms of the Marital Settlement and
Separation Agreement and incorporated them into the Judgment and Decree of
Dissolution.

7.  DFAS records indicate that the FSM failed to comply with the court
order to maintain the SBP coverage on the applicant as his "Former Spouse",
and they have no record of a deemed election being submitted by the
applicant prior to 2007.

8.  On 25 February 2007, the FSM died.  DFAS records show the FSM remarried
and changed his SBP beneficiary to his current wife prior to his death.
The DFAS records further show that the FSM's SBP coverage designation at
the time of his death was still "Spouse Only", and the FSM's current wife
is now receiving her SBP annuity.

9.  On 30 May 2007, DFAS received an application for SBP benefits from the
applicant based on the death of the FSM.  On 19 June 2007, DFAS returned
the application and accompanying documents to the applicant and informed
her that in order for her to be awarded SBP benefits as a former spouse, it
would have to be defined in the divorce degree, and a deemed election would
have had to have been made within 1 year of the divorce.  DFAS indicated it
had no record of the FSM making a former spouse election or of a deemed
election being requested by the applicant within 1 year of the divorce.

10.  In her letter forwarding her request for SBP coverage to DFAS, dated
25 May 2007, the applicant indicated that when her divorce papers from the
FSM were finalized, she and the FSM went to Fort Rucker, Alabama, and were
assisted in filling out paperwork and were provided the address to mail the
documents to.  She stated that the paperwork concerning division of retired
pay was sent on 15 June 1999 and that the SBP paperwork requesting a deemed
election be made was sent on 18 July 1999.  She further indicated that she
was enclosing documents that were sent on those dates in 1999.  She stated
that she believed she had complied with all the directions given to her, to
include the timeline, and upon the FSM's death, she was informed the
paperwork had not been filled out correctly.  The documents provided to
DFAS by the applicant at this time included a letter, dated 15 June 1999,
indicating that the divorce decree of her and the FSM ordered a division of
the FSM's retired pay that entitled her to 50 percent; and a letter, dated
18 July 1999, in which she is requesting that if the FSM had not notified
DFAS of her entitlement to SBP coverage as a former spouse, she was
requesting a deemed election be made and that former spouse coverage be
established.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection
Act (USFSPA), dated 8 September 1982, established SBP for former military
spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses
status as an SBP beneficiary upon divorce; however, the means by which the
divorced (former) spouse may receive a survivorship annuity are: (1) if the
service member voluntarily elects to provide a former spouse annuity; (2)
the election is made in order to comply with a court order; or (3) the
election is made to comply with a voluntary written agreement related to a
divorce action and that voluntary agreement is part of a court order for
divorce, dissolution, or annulment.

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to
order SBP coverage in those cases where the retiree had elected spouse
coverage at retirement or was still on active duty and had not yet made an
SBP election.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to "Former Spouse Only"
coverage under the SBP was carefully considered.  However, while the
applicant's argument has logic and appears to be supported by the divorce
decree she provides, it is not the overriding principle in this case.  The
clear intent of the governing law is to provide a former spouse an
alternative means of gaining SBP coverage once an agreement is entered into
and validated by a court if the service member involved fails to comply
with the terms of the agreement.

2.  In this case, it is clear that although the FSM initially agreed to
continue SBP coverage on the applicant as the "Former Spouse”, it clearly
was not his intent to continue to have the applicant as his SBP
beneficiary, as evidenced by his failure to change his SBP election
subsequent to their divorce, and to add his new wife to DFAS records as his
beneficiary.

3.  Although the applicant indicates she submitted a deemed election
request within 1 year of her divorce from the FSM, there is no indication
that these documents were ever received or processed by DFAS within the 1
year timeframe established by law, and there is no evidence to show the
applicant attempted to clarify her SBP entitlement at anytime prior to the
FSM's death.

4.  There are equity considerations that would normally be entertained in
this case given the FSM clearly agreed to provide the applicant SBP
coverage after their divorce.  However, the evidence of record confirms
that the FSM’s current wife is now listed as his lawful beneficiary for SBP
benefits.  It is recognized that the divorce decree awarded the SBP to the
applicant and specifically ordered the FSM to timely execute all documents
necessary to maintain the applicant’s designation as a former spouse SBP
beneficiary.  Unfortunately, it appears the FSM did not take the action
directed by the court, nor was a deemed election request from the applicant
received and processed by DFAS within 1 year of the divorce, as required by
the SBP statute.  The FSM also remarried and the SBP spouse coverage vested
in his current spouse as her property upon the first anniversary of their
marriage.

5.  The Board may not divest the FSM's current spouse of her interest in
the SBP without an order from a State court of competent jurisdiction over
the divorce proceedings of the applicant and the FSM.  That is, the Board
cannot take the SBP from the FSM's current spouse without violating her
constitutional right to due process of law.  Therefore, this court action
would have to include the FSM’s current wife as a party in order to protect
her property interest and rights.  If the court after a proceeding
determines that the applicant is the proper SBP beneficiary, the applicant
can apply to this Board for reconsideration.  In the alternative, the Board
may reconsider the applicant’s request if she obtains a notarized, sworn
affidavit from the FSM’s widow irrevocably renouncing her right to the SBP
annuity.  In view of the facts of this case, regrettably, there is
insufficient evidence that would warrant granting the relief requested at
this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __MJF __  __SJS __  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.




                                  _____William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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