RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 February 2006
      DOCKET NUMBER:  AR20050007628


      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, on behalf of his mother, that the records of
his deceased father, a former service member (FSM), be corrected to show he
changed his Survivor Benefit Plan (SBP) coverage from spouse to former
spouse.

2.  The applicant states the FSM never changed his SBP coverage after the
divorce because he assumed his (the applicant's) mother would still receive
the benefit.  Neither of his parents remarried.  The FSM stated several
times he wanted the applicant's mother to be provided for.  Prior to his
death, the FSM expressed the desire to remarry the applicant's mother.

3.  The applicant provides ten letters of support from his brothers and
sisters; his mother's general power of attorney; the FSM's death
certificate; and his parents' divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant's mother married on 7 March 1947.  After
having had prior service, the FSM enlisted in the Regular Army on 21 June
1950.  The FSM retired on 1 August 1963.

2.  Records at the Defense Finance and Accounting Service (DFAS) show the
FSM enrolled in the SBP for spouse coverage, full base amount, on 1 June
1973.

3.  The FSM and the applicant's mother divorced on 4 September 1980.

4.  The FSM died on 31 March 2004.  His death certificate shows his marital
status as divorced.  Records at DFAS show he continued to pay SBP premiums
until his death and that no one is getting the annuity.

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.  It declared a 12-month
Open Season for those members who retired prior to enactment of the law.

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 99-145, dated 8 November 1985 but effective 1 March 1986,
permitted retirees to elect SBP coverage for a former spouse under spouse
coverage provisions vice insurable interest provisions.

DISCUSSION AND CONCLUSIONS:

1.  It appears it was the FSM's intent to provide the SBP to the
applicant's mother.  The FSM continued to pay SBP premiums for almost 24
years after the divorce, and the available evidence shows he never
remarried.  It appears he paid all SBP premiums at the spouse rate.

2.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).  Former spouse costs were
made under the higher insurable interest provisions, however.  Former
spouse costs were not made under the lower spouse provisions until Public
Law 99-145 was enacted in November 1985 (and not effective until 1 March
1986).

3.  It would be equitable to correct the FSM's records to show he changed
his SBP coverage to former spouse coverage on 1 October 1983.  It would be
equitable to show he requested former spouse coverage under the lower
spouse provisions on 1 December 1985.  However, it would also be equitable
to collect the additional SBP premiums due for the period between 1 October
1983 and      1 March 1986 when SBP premiums should have been paid under
the higher insurable interest provisions.

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:

     a.  showing the FSM made a written request on 1 October 1983 to change
his SBP coverage to former spouse coverage and his request was received and
processed by the appropriate office in a timely manner;

     b.  showing the FSM made a written request on 1 December 1985 to
change his SBP coverage to former spouse under the lower spouse provisions
and his request was received and processed by the appropriate office in a
timely manner;

     c.  advising the applicant that the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due; and

     d.  paying to the applicant's mother an annuity based upon the above
corrections retroactive to the date of the FSM's death.




                                  __Jennifer L. Prater__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007628                           |
|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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