RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 March 2006
      DOCKET NUMBER:  AR20060002994


      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:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. Jeffrey P. Parsons            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to
correct the records of her deceased former spouse, a former service member
(FSM), to show he changed his Reserve Component Survivor Benefit Plan
(RCSBP) election to former spouse coverage.

2.  Counsel states that the previous Board stated:  "Absent consent of the
widow to correct the FSM's records to provide for former spouse coverage in
lieu of spouse coverage, to grant the applicant's request at this date
would constitute an unconstitutional taking from his widow."  To overcome
the constitutional objection, which counsel presumes is in the nature of a
Fifth Amendment concern for due process of law, the applicant initiated
litigation against the widow.

3.  Counsel states that, in its Summary Final Judgment, the Court ordered
the widow to execute a written consent to correct the records of the FSM to
reflect his timely request for former spouse coverage under the SBP.  It
provides that the failure of the widow to execute a written consent shall
be overcome by the Summary Final Judgment, which shall serve as her consent
to the relief requested.

4.  Counsel provides a Complaint for Injunctive and Other Relief in the
Circuit Court of the 17th Judicial Circuit in and for Broward County, FL
case of [the applicant] vs [the widow]; a Notice of Appearance and
Certificate of Service in the same Court case; an Answer to Complaint in
the same Court case; an Affidavit of Verification of Complaint for
Injunctive and Other Relief in the same Court case; a Plaintiff's Corrected
Motion for Summary Judgment in the same Court case; a Summary Final
Judgment for Plaintiff in the same Court case; and a power of attorney.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040004802 on 15 March 2005.

2.  Counsel for the applicant provides new evidence which will be
considered by the Board.

3.  The FSM was born on 29 October 1944.  After having had prior service in
the Army National Guard, he enlisted in the U. S. Army Reserve.  His
notification of eligibility for retired pay at age 60 (his 20-year letter)
is dated 21 April 1994.  At that time, he completed a DD Form 1883
(Survivor Benefit Plan Election Certificate) and enrolled in the RCSBP for
spouse only coverage, full base amount, option C.

4.  The FSM and the applicant divorced around March 1999.  Divorce
documents awarded the applicant the SBP.

5.  The FSM remarried on 4 June 2000.

6.  On or about 22 January 2004, the FSM applied for retired pay, completed
a DD Form 2656 (Data for Payment of Retired Personnel), and elected to
participate in the SBP for former spouse coverage, full base amount.  He
also completed a DD Form 2656-1 (Survivor Benefit Plan (SBP) Election
Statement for Former Spouse Coverage).  His spouse signed this document as
a witness for the FSM.

7.  The FSM died on 24 February 2004.  The SBP annuity was established for
his widow.

8.  On 15 March 2005, the ABCMR denied the applicant's request for the SBP
because neither she nor the FSM made a written request to change his SBP
coverage to former spouse coverage within the one-year time limit
established by law.  Without the widow's consent to waive her property
rights to the SBP, the ABCMR was disinclined to correct the FSM's records
to show he requested former spouse SBP coverage within the one-year time
limit.

9.  In May 2005, the applicant requested the Circuit Court of the 17th
Judicial Circuit in and for Broward County, FL to direct the FSM's widow to
execute the consent documents requested by the ABCMR.  The FSM's widow
apparently refused.  On 14 December 2005, in a Summary Final Judgment, the
Court found that the FSM's widow acquiesced in the relief requested when
she signed the DD Form 2656-1 as a witness and that her acquiescence
constituted a legal waiver of her claim to the SBP.  In the event the FSM's
widow failed to execute the required consent documents, the Summary Final
Judgment would serve as her consent to the relief requested by the
applicant.

10.  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.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a
way for those who had qualified for reserve retirement but were not yet age
60 to provide an annuity for their survivors should they die before
reaching age 60.  Three options are available:  (A)  elect to decline
enrollment and choose at age 60 whether to start SBP participation; (B)
elect that a beneficiary receive an annuity if they die before age 60 but
delay payment of it until the date of the member’s 60th birthday; (C)
elect that a beneficiary receive an annuity immediately upon their death if
before age 60.  If death occurs before age 60, the RCSBP costs for options
B and C are deducted from the annuity.  Once a member elects either Option
B or C in any category of coverage, that election    is irrevocable.
Option B and C participants do not make a new SBP election at age 60.  They
cannot cancel SBP participation or change options they had in RCSBP – it
automatically rolls into SBP coverage.

12.  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.

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

14.  Public Law 98-525, enacted 19 October 1984, provided that a former
spouse could request a deemed election within one year of the court order
requiring SBP to be established on the former spouse’s behalf, provided the
member agreed to provide coverage.

15.  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.

16.  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.  The applicant's request was originally denied by the ABCMR because
neither she nor the FSM had requested his RCSBP coverage be changed to
former spouse coverage within one-year of their divorce.  Because the FSM's
widow, the legal beneficiary of the SBP, had not provided her consent to
waive her right to the SBP, the ABCMR was disinclined to correct the FSM's
records to show he requested former spouse SBP coverage within the one-year
time limit established by law.

2.  Counsel is correct – the ABCMR had a concern for the FSM's widow's
right to due process of law.  However, she has now had her opportunity for
due process, and the Circuit Court of the 17th Judicial Circuit in and for
Broward County, FL has ruled in favor of the applicant.

3.  At this time, it would be equitable to correct the FSM's records to
show he made a written request to change his RCSBP coverage to former
spouse coverage within the one-year time limit established by law.

BOARD VOTE:

__jpi___  __jpp___  __eem___  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
amendment of the ABCMR’s decision in Docket Number AR20040004802 dated 15
March 2005.  As a result, the Board recommends that all Department of the
Army records of the individual concerned be corrected by:

     a.  showing that the FSM made a written request to change his RCSBP
coverage to former spouse coverage on 1 April 1999 and that his request was
received and processed by the appropriate office in a timely manner; and

     b.  paying to the applicant the SBP annuity retroactive to the date of
his death.




                                  __John P. Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002994                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060323                                |
|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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