RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050015984


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, that the Survivor Benefit Plan (SBP)
election he made be corrected by changing the election from current spouse
coverage to former spouse coverage.

2.  The applicant states, in effect, that at the time of his retirement he
was under the impression that his former spouse was required to submit
paperwork within one year of the final divorce decree in order to receive
benefits under the SBP.  He also states, in effect, that after talking with
his lawyer, he was informed that even though his former spouse did not
apply for SBP benefits, he should have applied for her.  He adds that he
would now like to correct the mistake he made and change his SBP election
from current spouse to former spouse.

3.  The applicant provides three pages (i.e., pages 1, 7, and 9) of the
amended divorce decree, dated 27 April 1999; and a copy of a DD Form 2656
(Data for Payment of Retired Personnel), dated 14 October 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
U.S. Army and entered active duty on 6 May 1976.  On 27 July 1989, the
applicant was appointed as a warrant officer in military occupational
specialty 880A2 (Marine Deck Officer).

2.  The applicant was married to his former spouse on 25 June 1978.  They
divorced on 27 April 1999, after more than 20 years of marriage.  The
amended divorce decree stated, in pertinent part, that as soon as allowed
by law, the applicant "shall irrevocably enroll" in the SBP for full
benefits and "shall irrevocably designate" his former spouse as the
beneficiary of SBP benefits for so long as she may live.  This document
also shows that the former spouse would pay the premiums for the SBP
election.

3.  There is no evidence of record to show that the former spouse made a
deemed election to the Defense Finance and Accounting Service (DFAS) for
former spouse SBP coverage within a year of the divorce decree being
issued, as is required by law.

4.  On 29 July 2000, prior to his retirement from the Army, the applicant
remarried.

5.  The applicant provides a copy of a DD Form 2656, dated 14 October 2004,
which shows, in pertinent part, that he elected to participate in the SBP
at that time and elected spouse and children coverage based on his full
gross pay.  He listed as his only dependent child his daughter from his
former marriage, with a date of birth of 30 April 1992.

6.  On 30 April 2005, the applicant honorably retired from active duty in
the rank of chief warrant officer four/pay grade W-4, after serving on
active duty a total of 28 years, 11 months, and 25 days.

7.  In the processing of this case, coordination was made with the
applicant for additional information.  In response, the applicant provided
a copy of his Retiree Account Statement, with an effective date of 6 April
2006, and a statement from his current spouse, dated 25 July 2006.  The
Retiree Account Statement shows, in pertinent part, that SBP costs are
being deducted from the applicant's Army retired pay for SBP spouse and
children coverage.  The child listed is the same daughter named by the
applicant on his DD Form 2656.  The statement from the applicant's spouse
shows that she consents to the change in SBP coverage from current spouse
and children coverage to former spouse and dependent children of that
marriage coverage.  The statement also shows that the current spouse is
completely aware of her rights under the law and that she provides full
consent to have the SBP coverage change made as quickly as possible.  The
document further shows that she affixed her signature to the statement on
25 July 2006.

8.  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.

9.  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.

10.  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.

11.  Title 10, U. S. Code, section 1448(b)(2), 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.  The person may elect
the annuity for his or her former spouse upon becoming eligible to
participate in the SBP (i.e., at retirement).  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 after the date of the court-ordered
decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was divorced in April 1999, his amended divorce
decree stated that the applicant must enroll in the SBP for the full base
amount, elect former spouse coverage, and maintain such coverage for as
long as the former spouse lived.  In addition, the former spouse was to pay
the premiums for this SBP election.

2.  By law, incident to a proceeding of divorce, a member must comply with
a court order directing an annuity to a former spouse by making such an
election at retirement.  If the member fails to make such an election, the
law also permits the former spouse concerned to request that a former
spouse SBP coverage election be deemed to have been made, if the request is
made within one year of the date of a court order of divorce.

3.  The evidence of record indicates that the applicant failed to elect SBP
coverage for his former spouse at the time of his retirement on the DD Form
2656.

4.  The evidence of record indicates that the former spouse failed to make
a request for a deemed election within one year of the divorce.

5.  The evidence of record shows that despite the court-ordered directive,
the applicant elected current spouse and children coverage when he
submitted his DD Form 2656 in conjunction with his request for retirement
in October 2004. The evidence of record also shows that the applicant has
been paying SBP premiums for spouse and children coverage since he retired
from active duty.


6.  In establishing the SBP, it was the intent of Congress to provide for
those spouses who supported the military member for the majority of his or
her military career.  The former spouse was married to the applicant for
nearly 21 years of his 28-year military career.  The evidence of record
shows that the court awarded the former spouse the SBP beneficiary status
in the amended divorce decree entered into by the applicant and former
spouse.  The applicant states that he was under the impression that his
former spouse was required to make a deemed election within one year of the
date of the divorce.  The applicant also maintains that he made his current
spouse his SBP beneficiary at the time of his retirement from active duty
based upon erroneous information.  Specifically, that his former spouse did
not make application for the SBP.  However, he adds that it is now his
intent to comply with the amended divorce decree and change his SBP
election to former spouse and dependent children (of that former marriage)
coverage.  In addition, the applicant's current spouse consents to this
change in SBP coverage.  Therefore, as a matter of equity, it would be
appropriate to correct the record to comply with the amended divorce decree
that directed SBP coverage for the former spouse, as requested by the
applicant at this time.

7.  In view of the foregoing and in the interest of justice, it would be
appropriate to show that the applicant did, in fact, make an SBP election
for coverage of his former spouse and dependent children of that marriage.

BOARD VOTE:

__SLP___  __RML__  __JGH __  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:

     a.  showing that he elected former spouse and children coverage on his
DD Form 2656, dated 14 October 2004, and that his request was received and
processed by the appropriate office in a timely manner; and

     b.  advising the applicant that the Defense Finance and Accounting
Service will be instructed to collect any SBP costs that may be due as a
result of this correction.




                                  ____Shirley L. Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015984                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20050430                                |
|DISCHARGE AUTHORITY     |AR 600-8-24, Paragraph 6-14c(1)         |
|DISCHARGE REASON        |Sufficient Service for Retirement       |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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