RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 May 2005
      DOCKET NUMBER:  AR20040005772


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 Survivor Benefit Plan (SBP) election be
changed to former spouse coverage.

2.  The applicant states that it is his desire and intent to reinstate his
original election of SBP for his first spouse, who has remained unmarried
and who has provided for him in his ill health for the last seven years.
She never received notice of any change in his election.

3.  The applicant provides an agreement between him and his former spouse;
a DA Form 1041 (Election of Options under the Uniformed Services
Contingency Option Act of 1953); a Statement of Service; his retirement
orders; and a DD Form 2293 (Application for Former Spouse Payments from
Retired Pay).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred in September 1984.  The application submitted in this case
is dated      6 August 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 applicant married E___ in June 1944.  After having had prior
enlisted service, he was commissioned a second lieutenant on 10 October
1944.

4.  On 13 June 1958, the applicant elected to provide an annuity payable to
his widow and surviving children under the Uniformed Services Contingency
Option Act (USCOA) of 1953.

5.  The applicant was placed on the retired list on 27 August 1966 by
reason of physical disability.

6.  Records at the Defense Finance and Accounting Service – Cleveland
Center (DFAS-CL) show that the applicant enrolled in the SBP in June 1973
for spouse coverage.

7.  The applicant divorced E___ in July 1974.  SBP spouse costs were not
suspended until 1976 when the law changed.  He married H___ in December
1982.  H___ died in September 1996.

8.  On 25 April 2005, the applicant was informed that correcting his
records to show he elected former spouse coverage would cost about $30,000.
 On 26 April 2005, the applicant indicated his agreement with paying this
back cost.

9.  On 3 May 2005, DFAS-CL informed the Board analyst that, based on the
applicant's retired pay, the SBP annuity (effective 2008, when the law
provides for the abolishment of the social security offset) will be
approximately $2,699.92 a month.  Until 2008, the annuity will be 35
percent (instead of the full 55 percent) of the applicant's retired pay.

10.  Public Law 83-239, enacted 8 August 1953, established the USCOA.  It
covered only persons dependent on the member at the time of his retirement.
 The annuity was 1/2, 1/4, or 1/8 of retired pay.

11.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the
Retired Serviceman's Family Protection Plan (RSFPP).  The USCOA
automatically converted to the RSFPP with the same election options and
annuity amounts as the USCOA.  It also covered only persons dependent on
the member at the time of his retirement.

12.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and
established the SBP.  The RSFPP did not automatically convert to 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. It declared a 12-month Open Season for those members
who retired prior to enactment of the law.  SBP elections are made by
category, not by name.

13.  Public Law 94-496, effective 1 October 1976 provided for the
suspension of spouse costs if marriage ends in death or divorce.

14.  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 under insurable interest coverage provisions.

15.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members.  A one-year open enrollment period was
established from 24 September 1983 through 23 September 1984.

16.  Public Law 99-145, dated 8 November 1985 but effective 1 March 1986,
provided for former spouse election under the same provisions as spouse
coverage.  Changes from insurable interest coverage were permitted with the
former spouse's concurrence until 8 November 1986.

DISCUSSION AND CONCLUSIONS:

1.  The Board recognizes there is no Government error in this case.  The
applicant had an opportunity to elect former spouse coverage during the
      24 September 1983 through 23 September 1984 open enrollment period
but, whether intentionally or by default, he elected to retain spouse
coverage.  His wife, H___, had the protection of the SBP until her death in
1996.

2.  Nevertheless, the Board acknowledges that it was Congress’s intent in
establishing the SBP to provide for those spouses who supported the
military member for the majority of his or her military career.  The
applicant's former spouse was married to him for almost his entire military
career and it appears she has been attending to him in his current ill
health for the past seven years.

3.  It would be equitable for the applicant's records to be corrected to
show he elected former spouse coverage and also elected former spouse
coverage under spouse provisions at the earliest opportunity.

BOARD VOTE:

__jea___  __lgh___  __lvb___  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:

     a.  showing he elected former spouse SBP coverage, with his spouse's
consent, on 1 August 1984 and his request was received and processed by the
appropriate office in a timely manner; and
     b.  showing he elected former spouse SBP coverage under spouse
provisions, with his former spouse's consent, on 3 March 1986 and his
request was received and processed by the appropriate office in a timely
manner.




            __James E. Anderholm__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005772                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050505                                |
|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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