RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 February 2006
      DOCKET NUMBER:  AR20050007347


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Robert W. Soniak              |     |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 that the records of her former spouse, a former
service member (FSM), be corrected to show she made a request for a deemed
election of the Survivor Benefit Plan (SBP).

2.  The applicant states she sent all the paperwork needed to have the SBP
placed in her name in the appropriate time frame.  Her attorney assisted
her with filling out all the forms.

3.  The applicant provides a letter from her to an unknown addressee dated
    20 June 2001; a fax cover letter dated 24 February 2005; the divorce
decree and separation and property settlement agreement; and a 15 June 2005
letter from her attorney.

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty as a commissioned officer on 5 June 1974.
He and the applicant married on 17 August 1980.  He retired on 30 June
1994.  He had elected to participate in the SBP for spouse only coverage,
reduced base amount.

2.  The FSM and the applicant divorced on 29 May 2001.  The separation and
property settlement agreement stated that the FSM agreed the applicant
would be the SBP beneficiary during her lifetime and that he waived his
right to elect others or change the named survivor/beneficiary during the
applicant's lifetime.  The separation and property settlement agreement
also stated that the FSM would immediately update any and all military pay
records to reflect the above and that each party would notify the Defense
Finance and Accounting Service (DFAS) within 30 days of the date of their
divorce and the agreement.  The agreement was incorporated into the divorce
decree.

3.  In a letter dated 20 June 2001 addressed to "To Whom it may Concern,"
the applicant stated she chose "to keep the SBP Insurance I was given in my
Divorce from (the FSM) dated May 29, 2001.  I hope this [is] all you need.
If you need any additional information or paperwork please do not hesitate
to call me…"

4.  Records at DFAS show that the FSM is still alive, that he has
apparently not remarried, and that the applicant is the SBP beneficiary.

5.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.
6.  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.

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

8.  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 SBP election.

9.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of
the USFSPA relating to the SBP.  It permits a person, incident to a
proceeding of divorce, to elect to provide an annuity to a former spouse if
required by court order to do so.  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 after the date of
the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  When the FSM and the applicant divorced on 29 May 2001, the separation
and property settlement agreement awarded the SBP to the applicant.  The
separation and property settlement agreement further stated that each party
would notify DFAS within 30 days of the date of their divorce.  The
agreement was incorporated into the divorce decree.

2.  In a letter dated 20 June 2001 addressed to "To Whom it may Concern,"
the applicant stated she chose to keep the SBP she was given in her divorce
dated 29 May 2001.  Although it cannot be confirmed she sent the letter to
DFAS, the timing strongly suggests this letter was sent to DFAS in
accordance with the instructions of the Court.  The Board concludes this
letter should be considered a properly constituted request by the applicant
for a deemed election of the SBP.

BOARD VOTE:

__jlp___  __ded___  __rws___  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 made a written request for a deemed election of the
FSM's SBP on 21 June 2001 and her request was received and accepted by the
appropriate office and processed in a timely manner.




                                  __Jennifer L. Prater__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007347                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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