RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       19 July 2007
      DOCKET NUMBER:  AR20060009533


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, cancellation of his enrollment in
the SBP (Survivor Benefit Plan) and that he be reimbursed for all annuity
payment deductions previously made.

2.  The applicant states, in effect, that he is asking that his records
be corrected to reflect his correct marital status.  When he filed his
application for retired pay, (DD Form 2656, Data for Payment of Retired
Personnel), he did not complete section 25, parts a, b, c, and d.  This
was done due to his misinterpretation of what a dependent child was.  His
children were adults and were not dependent upon him as when they were
young children.  With that thought in mind, he did not complete section
25 of the form.  As a result of his omission of this information, section
26, part c, did not match and the "system" made a default election for
him selecting automatic coverage.  This automatic coverage, as shown in
the Retiree Account Statement (DFAS-Cleveland Form 7220-148), indicates
spouse only coverage.

3.  In a follow-up letter to the Board, the applicant states, he wrote to
the DFAS (Defense Finance and Accounting Service) and requested
cancellation of payments for an SBP annuity for spouse only coverage.
This request was made due to their divorce agreement.  By agreement, she
waived all rights to his retirement and he waived all rights to her
retirement plans.

4.  The applicant further stated in this letter he had sent a copy of the
divorce decree with his application for retired pay because the marriage
had been dissolved several years before he applied for military retired
pay.  When he chose to have his two children listed as beneficiaries, he
was ill advised as to how he should reflect them on his retirement
application.  His two children are adults and do not rely on him for any
type of financial support.  He summarizes by stating he wants his children
to be named for beneficiary purposes only, but not for an SBP annuity.

5.  The applicant provided two addendums to his DD Form 149, Application
for Correction of Military Record; a copy of his DD Form 2656; a copy of
his divorce decree; a copy of his Retiree Account Statement, with an
effective date of 31 March 2006; a copy of a letter he addressed to the
DFAS; a copy of a reply he received from DFAS; a copy of his "20-Year
Letter;" and a copy of orders which reassigned him to the Retired Reserve.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 1 July 2003, the date he became eligible to receive retired
pay.  The application submitted in this case is dated 7 July 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’s records show he enlisted in the Naval Reserve on 15
October 1961 and continued to serve until 14 October 1967.  After a break
in service, he received a commission in the Army Nurse Corps, in the US
Army Reserve, on 9 February 1973.  He continued to serve in the Reserve
until he was released from the US Army Reserve Control Group
(Reinforcement) and was assigned to the Retired Reserve.

4.  On 9 April 1991, the US Army Reserve Personnel Center, St. Louis,
Missouri, notified the applicant he had completed the required years of
service to be eligible for retired pay, on application, at age 60 (20-Year
Letter).

5.  The applicant was assigned to the Retired Reserve, in the rank of
lieutenant colonel, on 20 April 1994.

6.  The applicant and his spouse were divorced on 24 July 2000.  A decree
of divorce was filed in the Los Angeles Superior Court on the same date.
As part of the divorce decree, each party was awarded, "all right or claim,
existing now or in the future, to entitlements under any other retirement
plan or other benefit of employment in the name of" the petitioner and
respondent, respectively.

7.  On 3 May 2002, the applicant completed a DD Form 2656 to apply for
retired pay to be effective 1 July 2003.  In this application, in Item 22
(Spouse), he entered, "N/A" to indicate he had no spouse.  In Item 25
(Dependent Children), he entered, "N/A" to indicate he had no dependent
children.  In Section IX (Survivor Benefit Plan (SBP) Election), Item 26
(Beneficiary Category) he elected coverage for children and again
indicated he had no spouse.  The applicant signed his
application and dated the form on 3 May 2002.  The form was witnessed and
signed on the same date, in item 33 (Witness Name/Signature and Date
Signed).

8.  On 1 March 2006, the applicant wrote the DFAS requesting his SBP
coverage be updated (corrected).  With this letter he provided a copy of
the originally completed DD Form 2656 and explained he did not have a
spouse and his rationale for election of his children as beneficiaries.
His adult children's addresses were provided to the DFAS.

9.  The DFAS replied to the applicant's letter on 7 April 2006 and advised
him if he wanted to change the election that was in force, he should apply
to this Board for a correction.

10.  The applicant's retiree account statement, with an effective date of
31 March 2006, shows SBP costs in the amount of $89.26 were being deducted
from his gross pay to provide a "Spouse Only" annuity.  In the Message
Section of the applicant's retiree account statement it states, "Your
designation of beneficiary was processed and is displayed in the arrears of
pay beneficiary information section" of this statement.

11.  The applicant's TAPDB (Total Army Personnel Data Base) Retirement
Points Summary, dated 7 October 2006, shows he completed 26 years
qualifying service for retirement purposes.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant completed sufficient service and
qualified for issuance of a "20-Year Letter."  The "20-Year Letter" was
issued to him on 9 April 1991.

2.  The applicant was reassigned from the US Army Reserve Control Group
(Reinforcement) to the Retired Reserve on 20 April 1994.

3.  The applicant and his wife divorced on 20 July 2000.  The applicant's
former spouse waived all rights and claims to his retired pay.

4.  The applicant completed a DD Form 2656, on 3 May 2002, to be
effective on 1 July 2003.  On this form, the applicant reported he had no
spouse and dependent children; however, in Section IX (Survivor Benefit
Plan (SBP) Election), Item 26 (Beneficiary Category), he incorrectly
elected SBP coverage for his children.  In this section of the form, he
again reported he had no spouse and elected no SBP coverage for his
former spouse.

5.  The applicant's children have reached their majority and are not
dependent upon the applicant for their income and livelihood.  They have
been named and are recognized by the DFAS as the applicant's beneficiary
for arrears of pay.

6.  The applicant has exhausted administrative remedies available to him to
correct this SBP issue.  The DFAS has advised him to petition this Board
for an appropriate correction.

7.  Based on the evidence in this case, it would be equitable to correct
his DD Form 2656 to show he declined participation in SBP and to return all
monies deducted by DFAS for SBP annuity premiums from his retired pay since
1 July 2003.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 July 2003; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 June 2006.  The applicant did not file within the 3-year
statute of limitations; however, based on the available evidence and
argument, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

__J_____  ___MJF__  __RJO__  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:

      a.  by amending the applicant's DD Form 2656 to show he declined
participation in the SBP at the time of his retirement on 1 July 2003; and

      b.  by having the DFAS return all monies deducted from his retired
pay for SBP annuity premiums since 1 July 2003 to the applicant.




                            _____John T. Meixell_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009533                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |137.0400                                |
|3.                      |137.0300                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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