RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          24 August 2004
      DOCKET NUMBER:  AR2004100144


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Melvin Meyer                  |     |Member               |
|     |Mr. Patrick McGann                |     |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 military records be corrected to show
he changed his Survivor Benefit Plan (SBP) coverage to former spouse
coverage.

2.  The applicant states that his former spouse failed to deem herself
qualified for the SBP within one year of the date of their divorce.  He
contends that compliance with her eligibility for SBP is his responsibility
per Alabama law and his divorce settlement.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 July 1994.  The application submitted in this case is dated
3 December 2003.
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's military records show that, after having had prior
enlisted service, he was commissioned a second lieutenant and entered
active duty on
13 December 1967.  He married on 6 August 1971.  The applicant enrolled in
the SBP on 28 January 1993 for spouse coverage, full base amount.  The
applicant retired in the rank of colonel on 31 May 1993 after completing
over 25 years of active service.

4.  The applicant divorced on 21 July 1994.  The divorce decree indicates
that the applicant was to continue to pay the monthly allotments for the
SBP and that his former spouse would continue as the beneficiary under the
SBP.

5.  The applicant remarried on 6 April 1996.

6.  On 5 August 2004, the applicant's spouse declined to sign a statement
indicating that she concurred with the applicant's desire to change his SBP
coverage from spouse to former spouse.

7.  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.

8.  Public Law 94-496 (14 October 1976, but effective 1 October 1976),
provided that the waiting period for a new spouse's eligibility was reduced
to one year following post-retirement marriage.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), enacted 8 September 1982, established SBP coverage for former
spouses of retiring members.

10.  Public Law 98-94, enacted 24 September 1983, established former spouse
coverage for retired members.

11.  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.

12.  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 of
the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  In accordance with Public Law 97-252, a request to change SBP coverage
from spouse to former spouse coverage must be made within one year of the
date of divorce.  Also, in accordance with Public Law 94-496, a new spouse
becomes eligible for the SBP annuity on the first anniversary of the date
of remarriage.  After the first anniversary, the spouse accrues a vested
interest in the SBP annuity.

2.  The provisions in the divorce decree concerning the SBP and the
applicant's current request are acknowledged.  However, since his spouse
has indicated she does not give her consent to changing his SBP coverage
from spouse to former spouse, to correct his records to show he did so
would take a benefit from her to which she is legally entitled.  Therefore,
it would not be appropriate to grant the applicant's request.

3.  Records show the applicant should have discovered the alleged error now
under consideration on 21 July 1994; therefore, the time for the applicant
to file a request for correction of any error expired on 20 July 1997.
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

MP_____  MM_____  PM______  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.



            _Margaret Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100144                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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