RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 September 2004
      DOCKET NUMBER:  AR2004102499


      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 C. Hise                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 Reserve Component Survivor Benefit Plan
(RCSBP) election of person with natural interest be changed to spouse
coverage.

2.  The applicant states that he noticed the error when he received his
initial Retiree Account Statement after turning age 60 in July 2003.  He
completed the DD Form 1883 (Survivor Benefit Plan Election Certificate) in
January 1989 for former spouse coverage.  The election was made after 1
March 1986 and, as such, is paid at the spouse rate.  He married his
current spouse on 7 July 1989 but failed to notify the Defense Finance and
Accounting Service (DFAS) within one year.  Because of that, he was
informed by the U. S. Army Reserve Personnel Center (ARPERCEN) in August
1990 that his remarriage voided his initial SBP election and his next
opportunity to get back into the SBP program would be when he turned age
60.  ARPERCEN indicated that he would "forfeit all benefits" if he died
prior to reaching age 60.

3.  The applicant states that about 14 years later, when he turned age 60,
he completed a DD Form 2656 (Data for Payment of Retired Personnel) and
elected SBP coverage for his spouse.  Then, when he received his Retiree
Account Statement, he noticed that he was being charged SBP coverage at the
             10 percent natural interest person rate rather than the 6.5
percent spouse rate.  Additionally, he should be responsible only for the
past RCSBP costs for the period January through July 1989 and not the
subsequent 14 years in accordance with ARPERCEN policy.

4.  The applicant also notes that the name of his current spouse is
misspelled on his Retiree Account Statement.  (On 26 August 2004, DFAS –
Cleveland Center informed the Board analyst that they could and would
administratively correct the spelling of his spouse's name.)

5.  The applicant provides a letter from the U. S. Army Reserve Personnel
Command (AR-PERSCOM, formerly ARPERCEN); his Retiree Account Statement
effective 25 July 2003; his DD Form 1883; his DD Form 2656; his divorce
decree; and his marriage license.

CONSIDERATION OF EVIDENCE:

1.  Except for a few documents, the applicant's Reserve Component records
are not available.

2.  The applicant was born on 25 July 1943.  The divorce decree indicates
he married on 31 July 1979.  He was released from active duty, in the rank
of captain, on 20 January 1984 and transferred to the U. S. Army Reserve
Control Group (Reinforcement).

3.  On 13 March 1987, the applicant divorced.  The divorce decree does not
mention the SBP.  The divorce decree mentions that, on 9 July 1985, an
agreement was entered into with respect to rights, duties, obligations,
property division, and other matters; however, that agreement is not
available.  (On        26 August 2004, the applicant informed the Board
analyst that there was no property agreement.)

4.  On an unknown date, the applicant received his notification of
eligibility for retired pay at age 60 (his 20-year letter).  On 13 January
1989, he completed a DD Form 1883.  In Section II (Marital, Dependency, and
Election Status), he checked in item 8d that he desired RCSBP coverage for
natural person with insurable interest.  Next to that entry, he annotated
the form "(former spouse)."  He also checked that he desired the annuity be
based on his full retired pay with option C, immediate coverage.

5.  The DD Form 1883 states, after the RCSBP election section, "IMPORTANT:
The decision you make with respect to participation in this Survivor
Benefit Plan is a permanent irrevocable decision.  Please consider your
decision and its effect very carefully."

6.  The applicant entered his former spouse's name and personal information
in Section IV (Insurable Interest Coverage).

7.  Section II on the version (dated 1 December 1976) of the DD Form 1883
completed by the applicant does not make a provision for former spouse SBP
coverage.

8.  On 7 July 1989, the applicant remarried.

9.  On 25 August 2002, the applicant completed a DD Form 2656.  In section
IX (Survivor Benefit Plan SBP Election), he checked that he elected spouse
only coverage, full base amount.

10.  The applicant turned age 60 on 25 July 2003.  His Retiree Account
Statement effective that date shows he has SBP coverage for a natural
interest person with an RCSBP cost.

11.  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.

12.  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.  If RCSBP option B or C
is elected, there is a Reservist Portion cost added to the basic cost of
the SBP to cover the additional benefit and assured protection had the
member died prior to age 60.

13.  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 cost provisions.

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

15.  Public Law 99-145, dated 8 November 1985, changed former spouse SBP
election costs to spouse coverage costs vice insurable interest cost
provisions.

16.  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.

17.  Public Law 105-85, dated 18 November 1997, removed the one-year
restriction for members to change from former spouse to spouse coverage.

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

19.  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 or
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 the agreement 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 or ratified or approved by a court order, the person
furnishes a statement signed by the former spouse and evidencing the former
spouse's agreement to a change in the election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant divorced in March 1987.  There is no mention of the SBP
in the divorce decree.  The divorce decree mentioned an agreement dated 9
July 1985.

2.  When the applicant completed his DD Form 1883 in January 1989, he
elected former spouse coverage.  Since former spouse coverage was not
provided for by law until 1982 and section II of the DD Form 1883 (dated 1
December 1976) did not provide a category of former spouse SBP coverage, he
indicated his desire for former spouse coverage by checking item 8d
(natural person with insurable interest) and annotating the form "(former
spouse)" next to that entry.

3.  The DD Form 1883 warned members that the decision they made with
respect to participation in the RCSBP was a permanent irrevocable decision
and to consider the decision and its effect very carefully.  The
applicant’s election to participate in the RCSBP for former spouse coverage
was an irrevocable decision which rolled over into the SBP upon his
reaching age 60.  No changes could be made upon his application for retired
pay.  ARPERCEN misinformed him when they told him his remarriage voided his
initial SBP election.  He did not forfeit any benefits.  Had he died prior
to reaching age 60, his former spouse would have received the RCSBP annuity
and that protection must be paid for out of the applicant's retired pay.
The RCSBP/SBP is not governed by ARPERCEN or Army policy; rather, it is
governed by Federal law.

4.  Although the applicant states there was no separation agreement, in the
absence of a subsequent court order explaining the divorce decree
mistakenly referred to a separation agreement it must be presumed there was
one.  In the absence of such a subsequent court order, it is presumed the
mentioned agreement awarded the SBP to the applicant's former spouse
(whether voluntary or required).  Therefore, the SBP will not be taken away
from the former spouse without her consent.  The applicant will be provided
a new DD Form 149 and a statement that may be used to obtain his former
spouse's concurrence to change his SBP election to spouse coverage.  Should
she provide her concurrence, the provided statement should be signed,
dated, and notarized.

5.  There is an error concerning the type of and cost of the applicant's
RCSBP/SBP coverage.  The evidence of record, combined with his contentions,
clearly show that he elected former spouse coverage, not natural person
with insurable interest coverage.  Since he made his election in 1989, the
cost of his former spouse coverage would have been made under spouse
coverage provisions.  His records should be corrected to show he elected
former spouse coverage and he should be refunded any and all overpayments
of RCSBP/SBP premiums based on this correction.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

__jch___  __bje___  __pms___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial 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 showing he elected to
participate in the RCSBP in January 1989 for former spouse coverage and
that he be refunded any and all overpayments of RCSBP/SBP premiums based on
this correction.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
changing his RCSBP/SBP election to spouse coverage or requiring that RCSBP
costs be paid only for the period January through July 1989.




            __James C. Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102499                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040921                                |
|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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