RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060002674


      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. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 Survivor Benefit Plan (SBP) coverage be
changed to former spouse coverage.

2.  The applicant states that when he divorced in 1991, he assumed his
former spouse would remain his SBP beneficiary since he did not make any
change to it.  He did not find out until his second divorce that there was
a problem.

3.  The applicant provides two Judgments of Divorce.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on    24 May 1992, the first anniversary of his divorce from his
former spouse, Betty.  The application submitted in this case is dated 14
February 2006.

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 limitations 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 was inducted into the Army on 23 September 1966.  He
retired on 1 December 1989.  He had completed a DA Form 4240 (Data for
Payment of Retired Army Personnel) and elected to participate in the SBP
for spouse and children coverage, reduced base amount.  His then spouse,
Betty, concurred with his election.

4.  On 24 May 1991, the applicant and his then spouse, Betty, divorced.
The Judgment of Divorce stated in pertinent part, “The defendant will
continue to provide for the plaintiff, until her death, all military
survivor’s benefit insurance (SBP) and will yearly provide proof of said
coverage.”

5.  The applicant remarried on 14 January 1992.  He divorced on 10 May
2005.  On 11 August 2006, he informed the Board analyst that he is not now
married but may remarry Betty in about two months.

6.  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.

7.  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.

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

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, incident to a
proceeding of divorce, to elect to provide an annuity to a former spouse if
required by court order to do so.  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.  When the applicant and now his former spouse, Betty, divorced in 1991,
the Judgment of Divorce stated in pertinent part, “The defendant will
continue to provide for the plaintiff, until her death, all military
survivor’s benefit insurance (SBP) and will yearly provide proof of said
coverage.”

2.  The applicant failed to make a written request to change his SBP spouse
coverage to former spouse coverage within one year of his divorce, as
required by law.  However, he is not married now and it is his intent to
comply with the court’s order to make his former spouse, Betty, his SBP
beneficiary.

3.  If the applicant remarries Betty, he should immediately provide the
Defense Finance and Accounting Service (DFAS) a copy of his new marriage
certificate and request that his SBP coverage revert to spouse coverage.
He should be sure to inform DFAS that his new wife, Betty, and his former
spouse, Betty, are one and the same person.

4.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         23 May 1995.   The applicant did not file within the 3-
year statute of limitations; however, based on the available argument, it
would be in the interest of justice to excuse failure to timely file in
this case.

BOARD VOTE:

__wfc___  __jcr___  __dwt___  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 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 made a written request
to change his SBP spouse coverage to former spouse coverage on 1 June 1991
and that his request was received and processed by the appropriate office
in a timely manner.




                            __William F. Crain____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002674                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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