RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 January 2005
      DOCKET NUMBER:  AR2004105593


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, in effect, reinstatement of “Former Spouse”
Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that he and his former wife of 23
years were divorced on 27 September 2002.  He states the divorce decree
called for him to provide continued SBP coverage for his wife and he mailed
the divorce decree to the Defense Finance and Accounting Service (DFAS) in
October 2002, which he believed complied with notification requirements.
He further states that unfortunately, he did not follow-up to ensure the
document was received and included in his records and just presumed the
requirements for continued former spouse coverage were met.  This
assumption was further supported by the fact that SBP premiums have
continued to be deducted from his retired pay.  He states that the SBP
annuity will be the only source of income for his former spouse once he
dies and he kept the SBP benefit for her because she is
18 years younger than him and will probably outlive him.  Further, she will
need the SBP annuity to survive given she suffers from an arthritic
conditions and a spinal problem, and is very limited in what she can do.
He concludes by stating that he has faithfully paid the SBP premiums since
his retirement in 1987 and requests the SBP coverage be continued for his
former spouse, as required by his divorce decree.

3.  The applicant provides a self-authored statement, divorce decree and
separation agreement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he was released from active duty for
the purpose of length of service retirement on 30 June 1987.  At the time,
he held the rank of colonel and he had completed 30 years and 27 days of
active military service.

2.  On 21 May 1987, during his retirement processing, the applicant
completed a Data for Payment of Retired Army Personnel (DA Form 4240).  In
this document, he elected “Spouse Only” SBP coverage at a reduced amount of
$1300.  His now former spouse was his wife at the time and she completed a
statement concurring with the applicant’s reduced amount coverage election.


3.  On 18 June 2002, the applicant and his former spouse entered into a
separation agreement that provided for the applicant to maintain SBP
coverage for his spouse until his death.  On 27 September 2002, a Decree of
Dissolution of Marriage was issued by the Combined Court of Jefferson
County, Colorado.  This decree indicated that both parties would perform
the applicable provisions of the separation agreement they had entered
into.

4.  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.  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.  By law, incident to a proceeding of divorce, a member has one year to
provide an annuity to a former spouse by making such an election.  The law
also permits the former spouse concerned to request a former spouse SBP
coverage election be deemed to have been made within one year of a date of
a court-order of divorce.

2.  The evidence of record confirms the applicant and his former spouse
were divorced on 27 September 2002.  The divorce decree directed that both
parties comply with the terms of a separation agreement they had entered
into on
18 June 2002, which included continued SBP coverage for the applicant’s
former spouse.

3.  Further, the applicant confirms he forwarded a copy of the divorce
decree to DFAS in October 2002 and SBP premiums have continued to be
collected from his retired pay.  It is clear the applicant’s intent was to
provide continued SBP coverage for his former spouse, as evidenced by the
separation agreement and divorce decree.  It further appears he believed he
complied with divorce notification and former spouse SBP election within
one year of his divorce, as evidenced by his forwarding his divorce decree
to DFAS within a month of his divorce.  As a result, given the 23 year
marriage of the applicant and his former spouse and the applicant’s clear
intent to provide his former spouse continued SBP coverage, it would serve
the interest of justice, compassion and equity to grant the requested
relief.
BOARD VOTE:

___FE___  __RTD __  __ YM __  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
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he changed his Survivor Benefit Plan election from “Spouse” to
“Former Spouse” on 27 September 2002, the date of his divorce.




            ____Fred Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105593                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/06                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]