RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 July 2004
      DOCKET NUMBER:   AR2004107126


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 records be corrected to show that he
elected to participate in the Survivor Benefit Plan (SBP) for former spouse
and children coverage when he retired.

2.  The applicant states that he was divorced one month prior to being
retired.

3.  The applicant provides his Retiree Account Statement effective 2
December 2003, his DD Form 214 (Certificate of Release or Discharge from
Active Duty), his divorce decree, and the consent of his spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 September 1992.  The application submitted in this case
is dated 28 March 2004.

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 initially enlisted in the Regular Army on 26 February
1968.  He and his former spouse married on 4 May 1969.  He separated on 25
March 1971. He reenlisted on 7 June 1971.

4.  On 27 May 1991, the applicant and his former spouse separated.  On
     25 February 1992, he requested retirement to be effective 1 September
1992.  On 15 May 1992, he completed a DA Form 4240 (Data for Payment of
Retired Army Personnel).  On this form, he indicated that he elected to
participate in the SBP for spouse and children coverage, full base amount.

5.  On 22 June 1992, the court enjoined and restrained the applicant from
modifying or canceling his SBP.  On 21 August 1992, he divorced.  He
retired on 1 September 1992.  He apparently informed the Defense Finance
and Accounting Service in 1994 that he was divorced as his SBP premiums
stopped in 1994.  He remarried on an unknown date.

6.  On 31 January 2004, the applicant's spouse concurred with his request
to [elect] former spouse SBP coverage.

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.  Elections are made by
category, not by name, and must be made prior to the effective date of
retirement.

8.  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.

9.  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.

10.  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 May 1992, while in the process of getting a divorce, the applicant
elected to participate in the SBP for spouse and children coverage, full
base amount.  In June 1992, the court enjoined and restrained him from
modifying or canceling his SBP.  On 21 August 1992, he divorced.  He
retired on 1 September 1992.

2.  Since the applicant was no longer married on the effective date of his
retirement, his SBP election of spouse coverage was no longer valid.  He
did not modify or cancel his SBP; however, he did not follow the intent of
the court's order by changing his previous election of spouse and children
coverage to former spouse and children coverage.  His former spouse could
have made a request for a deemed election of the SBP; however, she failed
to do so.

3.  The applicant intends now to comply with the intent of the court's
order in providing the SBP to his former spouse.  His current spouse has
concurred with his request.  SBP premiums will be due retroactive to the
date of his retirement.

BOARD VOTE:

__kan___  __gjw___  __wdp___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for 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 that he elected to
participate in the SBP for former spouse and children coverage, full base
amount, on 22 August 1992.

2.  The individual concerned will be advised that the Defense Finance and
Accounting Service will be instructed to collect any SBP costs due.




            __Kathleen A. Newman__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004107126                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040708                                |
|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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