RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 April 2006
      DOCKET NUMBER:  AR20050011151


      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. Peter G. Fisher               |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 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 the court ordered the FSM to retain her as the SBP
beneficiary.  Neither she nor the FSM have since remarried.  She was not
aware she had to submit a written request for a deemed election within one
year of the divorce.  It was brought to her attention in March 2005 that
the FSM's Guardian ad Litem (the FSM's sister) changed the SBP entitlement
to child only coverage.  The applicant and her counsel allowed leniency in
regard to the percentage of retired pay she requested, so the FSM could
continue having the SBP premiums taken from his retired pay.  The FSM
informed her that he was completely unaware that the change had taken
place.

3.  The applicant provides the divorce decree, the Military Pension
Division Order, and related documents.  She also provides an Order
Appointing Guardian ad Litem.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 27 April 1973.  He and the
applicant married on 26 August 1982.  He retired on 1 March 1995.  The
Defense Finance and Accounting Service (DFAS) informed the Board analyst it
did not receive a DD Form 2656 (Data for Payment of Retired Personnel) from
the FSM; therefore, SBP coverage automatically defaulted to spouse and
child coverage.

2.  The FSM and the applicant divorced on 25 September 2001.  The court
ordered that the equitable distribution of their marital assets would be
reserved for further proceedings.

3.  On 14 June 2002, the FSM wrote to DFAS, before the court determined the
equitable distribution of their marital assets, and asked DFAS to
discontinue his SBP effective immediately, as he had been divorced
effective 25 September 2001.

4.  On 3 December 2003, the court issued a Military Pension Division Order.
 This order stated in pertinent part, "The Defendant shall be entitled to
thirty-six point two-six percent (36.26%) of Plaintiff's disposable retired
pay…, but her share shall be thirty-five (35%) because Plaintiff is ordered
to retain the Survivor Benefit Plan naming Defendant as the beneficiary,
and may retain his children as alternate beneficiaries so long as they are
eligible."  For the purposes of this proceeding, the court appointed the
FSM's sister as his Guardian ad Litem as he suffered from Paranoid
Schizophrenia with severe delusional disorder and was not competent.

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.  This law also decreed that state courts could
treat military retired pay as community property in divorce cases if they
so chose.

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

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 of the date of the
court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant married in 1982 and divorced in 2001.

2.  The court documents noted that the applicant was entitled to 36.26
percent   of the FSM's disposable retired pay, but also noted that her
share was reduced to 35 percent because the FSM was ordered to retain her
as the SBP beneficiary.

3.  The evidence of record shows that, in June 2002, the FSM informed DFAS
he had been divorced and requested his SBP premiums be discontinued.  His
sister did not become his guardian until December 2003.

4.  The evidence confirms the applicant's contention that she allowed
leniency in regard to the percentage of retired pay she requested so the
FSM could continue to have the SBP premiums taken from his retired pay.
The evidence of record shows the FSM had previously, in 2002, requested
DFAS discontinue his SBP, which was before the court issued its Military
Pension Division Order that awarded the applicant the SBP coverage.
However, his request was premature, since the 2001 divorce decree clearly
stated the distribution of marital assets remained to be decided.

5.  Although the applicant could have made a request for a deemed election
of the SBP within one year of the Military Pension Division Order, it
appears she was not aware that she could do so.  Based on the facts in this
case, it would be equitable to grant the relief requested by the applicant.

BOARD VOTE:

__jlp___  _pbf____  _rdg____  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
SBP on 1 January 2004 and that her request was received and processed by
the appropriate office in a timely manner.




                                  __Jennifer L. Prater__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011151                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060425                                |
|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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