RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            23 March 2004                  
	DOCKET NUMBER:    AR2003091716

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Lawrence Foster		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 the Survivor Benefit Plan (SBP) election he made on his DD Form 2656 (Data for Payment of Retired Pay) be changed from former spouse and dependent children (block 26f) to former spouse (block 26g).

2.  The applicant states, in effect, that he admits that he made the error at the time and accepts responsibility for his carelessness.  However, it was never his intent to enroll his children because he has more than sufficient civilian insurance to cover his children.  He goes on to state that he did not voluntarily enroll in the SBP and never had any intentions of doing so.  However, he was under a court order to do so as part of his divorce from his former spouse.  He continues by stating that his former spouse remarried prior to his retirement and her 55th birthday, which rendered her ineligible to receive SBP benefits.  He goes on to state that he notified Defense Finance and Accounting (DFAS) officials and provided them a copy of his former spouse's marriage license.  After contacting DFAS officials for a 3-month period, his records were finally corrected to stop the SBP payments for his former spouse.  However, he later learned that DFAS was deducting SBP premiums for his children and after reviewing his DD Form 2656, he discovered that he had made a mistake in the block he checked.  As a result of his carelessness, he has been making unwanted and unneeded SBP payments for 2 years.

3.  The applicant provides a copy of his DD Form 2656, a copy of his report of separation (DD Form 214) and a copy of his divorce decree.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was promoted to the rank of colonel on 1 May 1997 and on 10 May 1999, he and his spouse were granted a final decree of divorce in the District Court of El Paso County, Texas.

2.  The decree of divorce specifies (beginning on pages 21 and 38) that the applicant would provide child support payments for his two dependent children born in 1986 and 1987, until such time as they turned 18 years of age or graduated from high school and that the applicant would enroll his former spouse in the SBP under former spouse coverage and that the costs were to be borne by the former spouse.

3.  On 9 September 2002, the applicant completed and authenticated a DD Form 2656 in which he elected SBP coverage for his former spouse and dependent children (block 26f).  At that time his children were 15 and 16 years of age.

4.  On 31 January 2003, the applicant was honorably released from active duty and was placed on the Retired List effective 1 February 2003.  He had served 28 years, 4 months and 14 days of total active service.  At the time he became eligible for enrollment in the SBP, his children were 16 and 17 years of age.

5.  Title 10, United States Code, section 1447. Uniformed Service Former Spouses' Protection Act, provides, in effect, that a former spouse who remarries before age 55 loses SBP eligibility; however, if the marriage ends in death, divorce or annulment, eligibility is reinstated.  A former spouse who remarries after age 55 does not lose eligibility under Public Law 99-661, 14 November 1986.

6.  Public Law 99-45, 8 November 1985, effective 1 March 1986, permitted the election of the former spouse and child coverage.  Children are covered under the SBP until age 18 or until age 22, if full time students.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant does not claim any error or injustice on the part of the Department, he does claim that he made an error and checked the wrong block on his DD Form 2656, when he checked the former spouse and dependent children option (block 26f) instead of just the former spouse option (block 26e). 

2.  The applicant's contention that his divorce decree only required that he enroll in the SBP under the former spouse option is confirmed by a review of the decree of divorce provided by the applicant.

3.  The evidence also shows that at the time he became eligible for enrollment in the SBP, his children were 16 and 17 years of age and therefore had a very limited window of eligibility to receive benefits in the event of the death of the applicant.

4.  Therefore, it is reasonable to presume, (given the limited window of eligibility his children would have) that his election of former spouse and dependent children was in fact an administrative error on his part.

5.  Accordingly, the evidence suggests that it would be in the interest of justice and equity on the part of the Board to allow him to change his SBP election to that of former spouse only, effective the same date as his original election and that all premiums collected for his children's coverage be returned to him.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LF___  __TDH___  __KH___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Thomas D. Howard
		  CHAIRPERSON

INDEX

CASE ID	AR2003091716	
SUFFIX		
RECON		
DATE BOARDED	2004/03/23	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.350	137.0400/CHG ELECTION	
2.		
3.		
4.		
5.		
6.