RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 March 2005
      DOCKET NUMBER:  AR20040004501


      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. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |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 deceased
former spouse, a former service member (FSM), be corrected to show he
changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to
former spouse and children coverage.

2.  The applicant states that, before their divorce, they agreed that she
would have his military benefits.  He gave her a DD Form 1883 (Survivor
Benefit Election Certificate) and told her to hang on to it as it would be
valuable to her one day.  She was not sure what this was all about, and
since she had a pretty good job she did not pursue the situation too
strenuously.  Also, for some reason she thought that it only applied to her
when she reached retirement age.  She is now facing retirement and she
could use the help the annuity would give her.

3.  The applicant provides an SBP annuity claim packet; the divorce decree;
a DD Form 1883; the FSM's death certificate; their youngest child's birth
certificate; two DD Forms 214 (Armed Forces of the United States Report of
Transfer or Discharge); and a DD Form 215 (Correction to DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 September 1992.  The application submitted in this
case is dated 28 June 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 limitations 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 FSM was born on 3 September 1936.  He and the applicant married on
  8 April 1961.  On 23 February 1967, he was appointed a warrant officer in
the     U. S. Army Reserve after having had prior service.

4.  On 2 October 1979, the FSM completed a DD Form 1883 electing to
participate in the RCSBP for spouse and children coverage, full base
amount, option C.

5.  The FSM and the applicant divorced on 11 August 1987.  The divorce
decree states, in pertinent part, that the FSM was to pay to the applicant,
at such time as the FSM became entitled, 50 percent of all military
retirement benefits.  It also ordered him to designate the applicant and/or
their youngest child (born in May 1978) as beneficiaries under the SBP.

6.  The FSM died on 27 September 1992 at age 56.  The death certificate
shows his marital status as divorced.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members on active duty could elect to have their
retired pay reduced to provide for an annuity after death to surviving
dependents. Elections are made by category, not by name, and are
irrevocable except as provided for by law.

8.  Title 10, U. S. Code, section 1447(11) defines “dependent child” as a
person who is unmarried; is under 18 years of age or at least 18 but under
22 years of age and pursuing a full-time course of study in a high school,
college, or comparable recognized educational institution or is incapable
of self-support because of a mental or physical incapacity existing before
the person’s 18th birthday.

9.  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.  An Open Season was established from 1 October
1978 - 3 September 1979 and later extended to 31 March 1980.

10.  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.

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

12.  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.

13.  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.  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.  On 2 October 1979, the FSM elected to participate in the RCSBP for
spouse and children coverage, full base amount, option C.

2.  When the FSM and the applicant divorced in 1987, the court ordered the
FSM to designate the applicant and/or their youngest child (born in May
1978) as beneficiaries under the SBP.  There is no evidence to show the FSM
made a written request to change his RCSBP coverage to former spouse and
children coverage, and there is no evidence to show the applicant made a
written request for a deemed election (although it appears she was not
aware that she could have made the request).

3.  Nevertheless, the FSM was in compliance with the court order.  The
court ordered him to designate the applicant and/or their youngest child as
SBP beneficiaries.  Since he had elected spouse and children coverage, his
youngest child remained an SBP beneficiary after the divorce.

4.  The FSM died in September 1992, when their youngest child was 15 years
old.  The applicant provides no evidence to show that the child (or her, on
behalf of the child) was not paid the annuity through age 18 (or age 22, if
he was attending college).  If their youngest child can obtain evidence
(from the Defense Finance and Accounting Service – Cleveland Center) that
the annuity was never paid, he may submit an application to this Board
requesting retroactive payment of the annuity.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 September 1992, the date of the
FSM's death; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 26 September 1995.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__alr___  __reb___  __rr____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Allen L. Raub_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004501                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050324                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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