RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 November 2004
      DOCKET NUMBER:  AR20040000098


      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 N. Slone                 |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Mr. Patrick H. McGann             |     |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 his records be corrected to show he elected
to participate in the Survivor Benefit Plan (SBP) for former spouse
coverage when he retired at age 60.

2.  The applicant states that he did not realize he was under court order
to provide the SBP for his former spouse or that they had a one-year window
to do so.  It was his error and it just did not occur to him at that time
or at the time he retired at age 60.  Neither his former spouse nor her
attorney requested the change because they thought he would make
application.  He and his former spouse were married for over 22 years and
they have not remarried.  He believes that it is important to point out
that as a reservist, he was not privy to the detailed retirement
information that is available to active duty personnel.

3.  The applicant provides his divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 January 1943.  He and his former spouse
married in October 1965.  After having had prior service, he was
commissioned in the Army National Guard in 1971.  His notification of
eligibility for retired pay at age 60 (his 20-year letter) is not
available.  His Statement of Retirement Points indicates his 20-year letter
was dated or issued on 11 March 1984.  He apparently did not elect to
participate in the Reserve Component SBP (RCSBP) at the time he received
his 20-year letter.

2.  The applicant divorced on 14 March 1988.  The divorce decree ordered
him to name his former spouse as his SBP beneficiary.

3.  The applicant turned age 60 on 10 January 2003.  He completed a DD Form
2656 (Data for Payment of Retired Personnel) on 29 December 2002.  In
section IX of the DD Form 2656 he checked, in item 26, that he elected not
to participate in the SBP.

4.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.  The
election must be made before the first day the member is eligible for
retired pay.

5.  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.  At the time, a member must have made the election within 90 days of
receiving the notification of eligibility to receive retired pay at age 60
or else wait until he/she applies for retired pay and elect to participate
in the standard SBP.

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 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 had not yet made an SBP
election.

8.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had married his former
spouse in 1965, and it appears he did not elect to participate in the RCSBP
when he received his 20-year letter in 1984.

2.  The applicant divorced in 1988.  The divorce decree ordered him to name
his former spouse his SBP beneficiary.  He failed to do so within the
required one year from the date of the divorce.  Had he done so, his
election would have become effective when he became eligible for retired
pay.

3.  The applicant turned age 60 in January 2003.  He failed to elect to
participate in the standard SBP for former spouse coverage at that time.

4.  The applicant states he never remarried and he erred in not complying
with the divorce decree concerning the SBP.  He states it is his intention
to comply with the divorce decree and make his former spouse his SBP
beneficiary.  Therefore, it would be equitable to grant the relief
requested with payment of back due SBP premiums.
BOARD VOTE:

__jns___  __sp____  __phm___  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected by showing that, when he completed
his DD Form    2656 on 29 December 2002, he elected to participate in the
Survivor Benefit Plan for former spouse coverage, full base amount, and
that the DD Form 2656 was received by the appropriate office in a timely
manner to be effective when he became eligible to receive retired pay.

2.  That the Defense Finance and Accounting Service collect all SBP
premiums due as a result of the above correction.




            __John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000098                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041130                                |
|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.                      |                                        |


-----------------------
[pic]