RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 July 2005
      DOCKET NUMBER:  AR20040008613


      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. Stanley Kelley                |     |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 requests reconsideration of his earlier request to change
his Survivor Benefit Plan (SBP) election from former spouse coverage to
spouse coverage.

2.  The applicant states his former spouse has provided her concurrence
with his requested change.

3.  The applicant provides his former spouse's concurrence and their
separation agreement.

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
AR2004102499 on 21 September 2004.

2.  The evidence provided by the applicant is new evidence which will be
considered by the Board.

3.  The applicant was born on 25 July 1943.  He was released from active
duty and transferred to the U. S. Army Reserve Control Group
(Reinforcement), as a commissioned officer, on 20 January 1984.  He
divorced on 13 March 1987.  Neither the divorce decree nor the property
settlement agreement mentioned the SBP.

4.  When the applicant completed a DD Form 1883 (Survivor Benefit Plan
Election Certificate) on 13 January 1989, he elected to participate in the
Reserve Component SBP (RCSBP) for former spouse coverage.

5.  On 7 July 1989, the applicant remarried.  When he completed a DD Form
2656 (Survivor Benefit Plan SBP Election) on 25 August 2002, he indicated
that he elected spouse only coverage.

6.  The applicant turned age 60 on 25 July 2003.

7.  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 does not occur before age 60, the RCSBP costs for options B
and C are deducted from the member’s retired pay.  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.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection
Act, dated 8 September 1982, established SBP coverage for former spouses of
retiring members.  Public Law 98-94, dated 24 September 1983, established
former spouse coverage for retired members (Reservists, too).

9.  Title 10, U. S. Code, section 1448(b) (Insurable Interest and Former
Spouse Coverage), subsection 1448(b)(2) states that upon becoming eligible
to participate in the SBP a person who has a former spouse may elect to
provide an annuity to that former spouse.

10.  Title 10, U. S. Code, section 1450(f) states that a person who elects
to provide an annuity to a former spouse may change that election and
provide an annuity to his spouse or dependent child subject to limitations.
 A person who, incident to a proceeding of divorce is required by a court
order to elect former spouse coverage or who enters into a written
agreement (whether voluntary or required by a court order) to make such an
election, and who makes an election pursuant to such order or agreement,
may not change that election unless:

     (A) in a case in which the election is required by a court order or
where an agreement to make the election has been incorporated in, ratified,
or approved by a court order, the person furnishes a copy of a court order
which modifies the provisions of all previous court orders relating to such
election or modifies the agreement incorporated by the previous court order
to make such election, so as to permit the person to change the election;
or

     (B) in a case in which a written agreement that has not been
incorporated in, ratified, or approved by a court order, the person
furnishes a statement signed by the former spouse that evidences the former
spouse's agreement to a change in the election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had made an irrevocable election for former spouse
coverage when he elected to participate in the RCSBP in 1989.  His
election, when he turned age 60, for spouse coverage under the standard SBP
was invalid as his irrevocable RCSBP election rolled over into the standard
SBP.

2.  However, the law provides that when an election of former spouse
coverage is voluntary, that election may be changed when the member
furnishes a statement signed by the former spouse that evidences the former
spouse's agreement to a change in the election.  The applicant has provided
a notarized statement from his former spouse concurring with his request to
change his former spouse coverage to spouse coverage.  Therefore, it would
be equitable to correct his records to show he has spouse coverage.

BOARD VOTE:

__jns___  __sp____  _sk_____  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 AR2004102499 dated 21
September 2004.  As a result, the Board recommends that all Department of
the Army records of the individual concerned be corrected by changing his
RCSBP/SBP election to spouse coverage.




            __John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008613                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050712                                |
|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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