RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040011289


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry Olson                   |     |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 enrollment in the Survivor Benefit Plan
(SBP) be changed from former spouse coverage to children only coverage.

2.  The applicant states that he was divorced at the time of enrollment and
was not required to provide this coverage by law or regulation.  The
enrollment of his former spouse was done in error because he was trying to
enroll his children.

3.  The applicant provides a copy of his divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records are not available to the Board.
However, there were sufficient documents remaining in a reconstructed
record for the Board to conduct a fair and impartial review of this case.

2.  The applicant was born on 22 March 1960.  He was appointed as a Reserve
commissioned officer on an unknown date.

3.  He was married on 28 January 1988.

4.  The applicant's notification of eligibility to receive retired pay at
age 60 (his 20-Year Letter) is dated 10 June 1999.  On 12 July 1999, the
applicant completed a DD Form 1883 (SBP Election Certificate) and elected
to participate in the Reserve Component SBP for spouse and children
coverage, full base amount, option C.

5.  He was ordered to active duty in an Active Guard Reserve (AGR) status
on an unknown date.

6.  The applicant was divorced on 18 August 2000.  The divorce decree does
not mention the SBP.  The applicant has not provided any court orders
setting forth the division of property.

7.  On 30 October 2003, the applicant completed a DD Form 2656 (Data for
Payment of Retired Personnel) and elected to participate in the SBP for
former spouse coverage, full base amount.  He indicated that he was single
and had dependent children.  His DD Form 2656 shows his retirement date as
1 December 2003.  Two other options listed on the DD Form 2656 were
children only and former spouse and dependent children of that marriage.

8.  The applicant also completed a DD Form 2656-1 (SBP Election Statement
for Former Spouse Coverage) and elected former spouse coverage.  In Block
4, he checked "No" indicating that this election was not being made
pursuant to the requirements of a court order.  In Block 5, he marked "No"
indicating that this election was not being made pursuant to a written
agreement previously entered into voluntarily as part of or incident to a
proceeding of divorce, dissolution or annulment.  Block 12 (Remarks) states
"SOLDIER ELECTED FULL COVERAGE.  PER SERVICEMEMBER SBP IS NOT A COURT ORDER
IN DIVORCE DECREE, THIS IS VOLUNTARY BY SERVICEMEMBER."

9.  The applicant retired from active duty on 1 December 2003 for length of
service as a commissioned officer.

10.  In the processing of this case, a staff advisory opinion was obtained
from the Supervisor of the Retirements and Annuities Branch at the U.S.
Army Human Resources Command, St. Louis, Missouri.  The opinion points out
that the applicant completed the enrollment forms in July 1999 and
indicated he was married.  The divorce decree indicates his divorce was
final in August 2000.  The applicant and his wife signed the enrollment
form and it was witnessed.  The Supervisor of the Retirements and Annuities
Branch stated that there was no administrative error made by the Army.  The
enrollment may not be changed unless by order of the divorce decree, death
of the designated annuitant, or directive of the Army Board for Corrections
of Military Records (ABCMR).

11.  A copy of the advisory opinion was forwarded to the applicant for
comment and possible rebuttal.  The applicant contends that the form he
referred to in his request for correction is a DD Form 2656 and DD Form
2656-1, dated and signed only by him on 30 October 2003.  He states that
this form is for his election of coverage from his active duty retirement
not his Reserve component at age 60.  He also states that he wants to
remove his former spouse and add his children.  If his sons cannot be
enrolled in the SBP, then he requests to be disenrolled from the active
duty SBP.  He believes he has the right to disenroll since his former
spouse's permission was not required to enroll.  He would prefer not to
have to pay premiums at age 60, but understands that unless the law
changes, those premiums may be assessed against his retired pay at the
Reserve component rate.  He requests that the Board disregard the comments
from the Supervisor of the Retirements and Annuities Branch because he was
referring to the wrong forms.  He is not trying to change his Reserve
component election form with this request.  He states that the Army did not
commit any error, but the error was his alone.


12.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.

13.  Title 10, U.S. Code, section 1148(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.

14.  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.

15.  Public Law 105-85, enacted 18 November 1997, established the option to
terminate SBP participation.  Retirees have a one-year period, beginning on
the second anniversary of the date on which their retired pay started, to
withdraw from SBP.  The spouse's concurrence is required.  No premiums will
be refunded to those who opt to disenroll.  The effective date of
termination is the first day of the first calendar month following the
month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 20-Year Letter is dated 10 June 1999.  At that time, he
was married and elected to participate in the RCSBP for spouse and children
coverage.

2.  The applicant divorced in August 2000.  The divorce decree did not
mention the SBP.

3.  The applicant was ordered to active duty in an AGR status and served a
sufficient period of time to retire for length of service.  In October
2003, he completed a DD Form 2656 and elected to participate in the SBP for
former spouse coverage.  He indicated that his election was voluntary and
was not the result of a court order.  He contends he was attempting to
enroll his children and erroneously elected former spouse coverage.
However, the DD Form 2656 clearly indicated two other options that would
have provided children coverage.

4.  The applicant retired from active duty on 1 December 2003 under the law
which governs length of service retirement of commissioned officers.  Since
he retired from active duty, his SBP (DD Form 2656) election for former
spouse coverage overrides his previous RCSBP (DD Form 1883) election for
spouse and children coverage.

5.  The applicant's former spouse is the legal beneficiary of the SBP.  In
accordance with the law, her agreement is required to change the type of
coverage.

6.  If desired, the Board would consider an application from the applicant
if he requested correction of his records to show he elected former spouse
and children coverage.  However, he should be aware that his former spouse
would remain the primary beneficiary.

7.  The applicant became eligible to draw retired pay on 1 December 2003
and will have a one-year period, beginning on 1 December 2005, in which to
change his SBP enrollment option.  He is encouraged to contact the nearest
Retirement Services Officer for more information prior to making his
decision.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

WP______  JM______  LO______  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.




                                  William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011289                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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