RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 January 2005
      DOCKET NUMBER:  AR20040000473


      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. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 Reserve Component Survivor Benefit Plan
(RCSBP) election be changed from spouse coverage to former spouse coverage.

2.  The applicant states that he has always wanted his former spouse to
receive the SBP.

3.  The applicant provides a Retiree Account Statement; the first page of
his DD Form 2656 (Data for Payment of Retired Personnel); orders
transferring him to the Retired Reserve; orders placing him on the Retired
List; and a letter from the U. S. Army Reserve Personnel Command dated 10
August 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on    12 December 1995.  The application submitted in this case is
dated 19 April 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 23 August 1942.  After having had prior
service, he enlisted in the U. S. Army Reserve in 1966.  His notification
of eligibility for retired pay at age 60 (his 20-year letter) is not
available; however, records at the Defense Finance and Accounting Service
(DFAS) indicate he elected to participate in the RCSBP for spouse only
coverage, option C.  DFAS was also able to provide the second page of a DD
Form 1883 (Survivor Benefit Plan Election Certificate) showing he made that
election on 12 August 1988.

4.  On 21 December 2004, the applicant informed the Board analyst that he
divorced on 12 December 1994, that he has not remarried, and again
reiterated that he always intended his former spouse to receive the SBP.

5.  On 1 July 2002, the applicant completed a DD Form 2656.  On that form,
he indicated that he had no spouse, that he designated his former spouse to
be his beneficiary for his unpaid retired pay, and that he elected spouse
only SBP coverage.  Former spouse coverage was one of the options available
on the DD Form 2656.

6.  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.  Elections are made by category, not by name.  Once a member elects
either options 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.

7.  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.

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

9.  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.

10.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions
of the USFSPA relating to the SBP.  Section 1448(b)(3)(A) permits a person
who is a participant in the SBP and is providing coverage for a spouse or a
spouse and child and who has a spouse who was not that person's former
spouse when that person become eligible to participate in the SBP to elect
to provide an annuity to that former spouse.  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 applicant elected to participate in the RCSBP when he received his
    20-year letter in 1988.  He divorced in December 1994.  Although his
divorce decree is not available and it cannot be determined if the court
ordered him to provide the SBP for his former spouse, he stated that it was
always his intention to provide the SBP for his former spouse.  However, he
failed to make a written request to change his RCSBP election within one
year of the date of his divorce as required by law.

2.  Nevertheless, the applicant stated that he has never remarried and the
evidence shows he has paid SBP premiums since he turned age 60.  It would
be equitable to correct his records to show he requested, in writing and
within one year of his divorce, to change his RCSBP election to former
spouse coverage, option C.

BOARD VOTE:

__fne___  __rtd___  __ym____  GRANT 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 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 he made a written request
to change his RCSBP coverage to former spouse coverage, option C, on 1
January 1995 and that his request was received and processed by the
appropriate office in a timely manner.




            ___Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000473                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050106                                |
|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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