RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 March 2008
      DOCKET NUMBER:  AR20070010653


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 made by her deceased former spouse, a former service
member (FSM), be changed to "Former Spouse", and that she be provided a SBP
annuity based on the death of the FSM.

2.  The applicant states, in effect, that she should have received a SBP
annuity when the FSM died.  She claims that in their divorce decree, it
stated that she would receive the SBP annuity in the event of the FSM's
death.

3.  The applicant provides the following documents in support of her
application:  Marriage Certificate; FSM's Death Certificate; FSM's
Honorable Discharge Certificate and Certificate of Retirement; Divorce
Decree; and Attorney's Letters, dated 20 March 2007, 28 April 2006, and 24
February 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he completed 28 years, 7 months, and 28 days of
military service in various Active and Reserve Component (RC) capacities
between 11 July 1951 and 12 August 1990.

2.  On 21 September 1979, the National Guard Bureau (NGB) issued a
Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) to
the applicant.  This letter informed the FSM that he completed the
necessary
20 years of qualifying service and was eligible to receive retired pay at
age 60.

3.  On 25 April 1986, the FSM completed a SBP Election Certificate
(DD Form 1883), in which he elected full "Spouse and Children" coverage
under Option C (Immediate Coverage).  The applicant was listed as the
spouse and one granddaughter (court appointed), whose date of birth was 1
February 1975, was listed as an eligible child.

4.  A Data for Retired Pay (DA Form 3713), dated 11 October 1990, shows the
applicant was authorized to be placed on the Retired List, in the rank of
staff sergeant, on 12 August 1990.  This document confirms he completed 28
years,
7 months, and 28 days of qualifying service for non-regular retirement and
38 years, 8 months, and 4 days of military service for basic pay purposes.


5.  On 5 August 1997, the applicant and FSM were divorced.  The Decree of
Divorce issued by the Chancery Court of Independence County, Arkansas,
confirmed the applicant and FSM had entered into a property settlement
agreement that stipulated that if the FSM predeceased the applicant, the
applicant would be entitled to and receive the SBP annuity.  It further
stipulated that the FSM would notify the Defense Finance and Accounting
Service (DFAS) that the applicant was the beneficiary of the SBP and take
any and all steps necessary to vest said plan in the applicant.

6.  On 6 August 1997, the applicant notified the DFAS of the divorce and
provided a copy of the divorce decree.  She further indicated that the
purpose of the letter was to advise DFAS that she was claiming the SBP as a
former spouse and that she requested to be advised if there was anything
else she or the FSM needed to do in regard to her entitlement to the SBP.

7.  On 8 December 1997, the FSM submitted a SBP Election Change (DD Form
1882), in which he requested a change to his election to "Former Spouse"
based on the change in his marital status.  The FSM and applicant also
completed an Election Statement for Former Spouse Coverage, which they both
authenticated with their signatures, which were witnessed by a third-party.


8.  On 25 January 2006, the FSM died at the age of 75.

9.  In the processing of this case, a member of the Board staff coordinated
with DFAS, Retired Pay Inquiries Branch, Cleveland, Ohio, and confirmed the
documents revising the election submitted on 8 December 1997, were on file.
 However, DFAS indicated that although they had these documents changing
the election to "Former Spouse" coverage, their computer system indicated
that at some point, the FSM had changed his election to "Child Only".  DFAS
had no documents related to this "Child Only" election, and there is no
indication that the FSM had an eligible child at the time of his divorce.

10.  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.

11.  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.

12.  Title 10 of the United States Code, Section 1450(b) provides guidance
on the Termination of Annuity for Death, Remarriage Before Age 55.  It
states, in pertinent part, that an annuity payable to the beneficiary
terminates if a spouse or former spouse remarries before reaching the age
of 55.  If the surviving spouse or former spouse remarries before reaching
age 55 and that marriage is terminated by death, annulment, or divorce,
payment of the annuity shall be resumed effective as of the first day of
the month in which the marriage is so terminated.  However, if the
surviving spouse or former spouse is also entitled to an annuity under the
Plan based upon the marriage so terminated, the surviving spouse or former
spouse may not receive both annuities but must elect which to receive.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The
evidence of record confirms that the applicant and the FSM were divorced on
5 August 1997, and that the FSM submitted a SBP election change to "Former
Spouse" in December 1997, within a year of the divorce, as directed in the
divorce decree.

2.  Notwithstanding the DFAS computer system indication that the FSM had
elected "Child Only" coverage at some point, the evidence shows the FSM's
granddaughter, who was covered under his original SBP election, had already
reached the age of majority, and there was no other eligible children at
the time of the FSM's divorce from the applicant, or at the time of his
death.  More importantly, DFAS's change from former spouse and children to
children only coverage was void because there is no evidence the FSM
provided DFAS with a certified court order pertaining to this change.

3.  In view of the facts of this case, it would be appropriate and serve
the interest of equity and justice to correct the FSM's record to show he
properly changed his SBP election to "Former Spouse" in accordance with the
instructions contained in his divorce decree, and that the applicant is the
legitimate SBP beneficiary.  In addition, the applicant should be provided
all SBP annuity payments due, minus any premiums due, from the date of the
FSM's death if she were over 55 at the time of her remarriage.

4.  The DD Form 1883 completed by the FSM on 25 April 1986, lists the
applicant's date of birth as 22 August 1941; however, the DD Form 1882
submitted on 8 December 1997, lists the applicant's date of birth as 22
August 1942.  As a result, if her date of birth is actually 22 August 1941
as indicated on the original DD Form 1883, she would have been over 55 at
the time of her divorce; therefore, she would have been eligible to receive
the SBP annuity based on the death of the FSM at the time of his death.

5.  However, if the applicant's date of birth is 22 August 1942, as
indicated on the 1997 DD Form 1882, and she remarried prior to 22 August
1997, she would be ineligible to receive the SBP annuity, which would be
suspended until her remarriage ends in divorce, annulment or death.  As a
result, the applicant will be required to provide her birth certificate and
marriage certificate for her remarriage prior to DFAS making any SBP
annuity payments based on the death of the FSM.

BOARD VOTE:

___RTD _  __GJP __  __RMN__  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 FSM be corrected by:

      a.  showing his Survivor Benefit Plan election was changed from full
“Spouse and Children" to full “Former Spouse” on 5 August 1997, the date of
his divorce from the applicant; and

      b.  providing the applicant all SBP annuity payments, minus any
premiums due, since 25 January 2006, the date of the FSM's death if the
applicant provides proof that her date of birth is 22 August 1941, or that
her remarriage took place on or after 22 August 1997; or suspending Former
Spouse SBP until her remarriage ends by divorce, annulment, or death, if
her date of birth is 22 August 1942, and she remarried prior to 22 August
1997.




                                  _____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010653                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1990/08/12                              |
|DISCHARGE AUTHORITY     |10 USC 1331                             |
|DISCHARGE REASON        |Age 60-Retirement                       |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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