RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070001910 


	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.


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	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 his records be corrected to show his former spouse as his beneficiary for his Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that his divorce decree and settlement agreement are "legal" documents.  Neither he nor the Defense Finance and Accounting Service (DFAS) have the authority to change the SBP beneficiary.  When he remarried and added his present spouse as his SBP beneficiary in 2005, DFAS dropped the SBP election.  He thought DFAS, since DFAS had the divorce decree, was deducting the coverage from his ex-wife's share of his retirement [which, he states, is in the settlement agreement that is on file with DFAS].  He assumed wrong and added his present wife, Teresa, as the SBP recipient.  That was a mistake and needs to be corrected.

3.  The applicant adds that he sent a letter to DFAS on 16 May 2006 requesting they fix this administrative mistake.  He then applied for SBP and an increase in SBP for his ex-spouse on 1 September 2006.  He received a letter from DFAS on 19 December 2006 saying his request was invalid.  They enclosed a DD Form 149, Application for Correction of Military Record, apparently so he could apply to the ABCMR to correct the record.

4.  In support of his request, the applicant provides a copy of his Final Judgment of Dissolution of Marriage, filed 13 December 2002; a copy of their Marital Settlement Agreement, dated 9 October 2002; a copy of a letter the applicant wrote to DFAS, Subject:  Correct My Mistake, dated 16 June 2006; a copy of a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election, dated 1 September 2006; a copy of a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, dated 1 September 2006; a letter the applicant wrote to DFAS, Subject:  Open Enrollment Election, dated 18 September 2006; and a letter addressed to the applicant from DFAS, Retired and Annuity Pay, dated 19 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army Reserve on 1 March 1977.  He was appointed a Reserve commissioned officer and accepted his commission on 1 April 1978.  On 7 July 1978, the applicant entered active duty 

and continued to serve on active duty throughout a complete military career of 22 years, 3 months, and 24 days.  He was honorably separated for the purposes of retirement on 31 October 2000, in the rank and pay grade, Lieutenant Colonel, O-5.  His DFAS records show that he elected SBP coverage for his spouse in conjunction with his retirement processing and this election became effective on 1 November 2000.

2.  The applicant and his former spouse were married on 24 June 1972.

3.  On 9 October 2002, the applicant and his former spouse entered into a marital settlement agreement.  In this agreement, the applicant agreed to, "insure that the Petitioner/Wife remains eligible for the Survivor Benefits Plan through the military and shall provide proof of same upon reasonable request of the Wife."

4.  The marriage ended in divorce on 13 December 2002.  On 13 December 2002, when the Final Judgment of Dissolution of Marriage, was ordered and adjudged, the Marital Settlement Agreement was ratified and made a part of the final judgment as though it had been set forth in the Final Judgment of Dissolution of Marriage and the parties were ordered to comply with all of its provisions.

5.  On 14 February 2004, the applicant remarried.

6.  On 18 July 2005, the applicant submitted "paperwork" to add his current spouse to the SBP.  He explained he was remarried and DFAS had informed him they needed a copy of his divorce decree.  He sent in all paperwork he had been asked for and thought everything was okay; however, he received a copy of his retiree pay statement dated 7 July 2005 and the form had the statement, "NO SBP ELECTION IS REFLECTED ON YOUR ACCOUNT" [as emphasized on source document].  He advised the DFAS he had tried to elect this coverage the month of his marriage, 14 February 2005 [sic 14 February 2004], and he would like to have his spouse receive 55% of his base retirement amount after he died.

7.  On 14 December 2005, DFAS designated the applicant's current spouse as his SBP beneficiary.

8.  On 16 June 2006, the applicant wrote a letter to DFAS and stated, in effect, that about a year ago he had added his present wife, Teresa, as beneficiary for his SBP.  This was a mistake, he explained, and he stated he needed to drop his present wife and replace her with his former spouse as his beneficiary for SBP.  He requested that DFAS please correct his mistake so that he could adhere to the Marital Settlement Agreement.

9.  On 1 September 2006 during the Open Enrollment Season spanning the period 1 October 2005 through 30 September 2006, the applicant attempted to add his current spouse as beneficiary for an SBP annuity.  He submitted a DD Form 2656-9 and a DD Form 2656-1 under cover of the same letter of transmittal.  The DD Form 2656-1 he completed to provide his former spouse an annuity was signed by his former spouse on 12 September 2006.  He submitted the form to DFAS under cover of the letter of transmittal dated 18 September 2006.

10.  On 19 December 2006, DFAS responded to his application for changes to his SBP election.  They advised him they were unable to process his SBP Open Enrollment Election because it was invalid.  His DD Form 2656-9 was invalid because no open enrollment election may remove an existing designated beneficiary [his spouse] in order to provide coverage for another beneficiary [his former spouse].

11.  On 7 March 2008, the Army Liaison to DFAS verified that the applicant had elected SBP spousal coverage and that premiums were currently being taken from his military retired pay.

12.  On 10 March 2008, the applicant was contacted and advised that in order for a change to be effected changing the beneficiary from "spouse" to "former spouse," his present wife, Teresa, would have to relinquish all rights and claim to an SBP annuity in favor of his former spouse, Helen.  The applicant replied that getting a statement from his present spouse would be, "No problem."

13.  On 19 March 2008, the applicant submitted a notarized statement from his present spouse, Teresa, agreeing to the removal of her name as the existing designated beneficiary in order to provide SBP coverage for his former spouse, Helen.  His current spouse, Teresa, added that she did not agree to the removal of her name from any other benefits to which she is entitled as the applicant's spouse.  This election, she stated, did not preclude her from becoming the designated beneficiary for the SBP in the future, in the case of the death of her husband's former spouse.

14.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

15.  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.  Election of beneficiaries is made by category only, not by name (emphasis added).

16.  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.  This law also decreed that state courts could treat retired pay as community property in divorce cases if they chose to do so.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

17.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

18.  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.

19.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

20.  Title 10, U. S. Code, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless, one of the following requirements, whichever are applicable in a particular case are satisfied:

	(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person 

		(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

		(ii) certifies to the Secretary concerned that the court order is valid and in effect; or

	(B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

		(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

		(ii) certifies to the Secretary concerned that the statement is current and in effect.

21.  The Matter of Colonel Robert F. Schultz, Comptroller General decision B-249740, 1993 U. S. Comp. Gen LEXIS 633, dated 4 June 1993, concerned a case where the member divorced and remarried prior to retirement.  Pursuant to a court order, he provided SBP coverage for his former spouse and children when he retired.  When his former spouse died, predeceasing the member, the court order was no longer in effect.  The Comptroller General determined that, under those circumstances, full coverage for his current spouse attached upon the death of the former spouse.

22.  SBP elections are usually irrevocable once made; however, under certain special circumstances, the Comptroller General has allowed changes to be effected allowing a change in SBP beneficiaries from spouse to former spouse and back to spouse so long as the service member is alive, willing, and able to make the election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his former spouse married on 24 June 1972.  At the time of his retirement, 31 October 2000, he elected to provide her [his now former spouse] SBP coverage.

2.  On 9 October 2002, the applicant and his spouse entered into a Marital Settlement Agreement.  In this agreement, the applicant agreed to, "insure that the Petitioner/Wife remains eligible for the Survivor Benefits Plan through the military and shall provide proof of same upon reasonable request of the Wife."
3.  The marriage ended in divorce on 13 December 2002.  The Marital Settlement Agreement was ratified and made a part of the Final Judgment of Dissolution of Marriage and the parties were ordered to comply with all of its provisions.

4.  As part of the divorce settlement agreement, the applicant was required to elect SBP coverage for his former spouse; however, the applicant did not notify DFAS within one year of the divorce to change his election from "spouse" to "former spouse" as required by the SBP statute.  His former spouse also did not make a deemed election within one year after their divorce.

5.  In this case, since the applicant did not elect former spouse coverage within one year of his divorce and his spouse did not obtain a deemed election within one year, SBP coverage for spouse continued.  A former spouse cannot be an SBP beneficiary unless the applicant affirmatively elects her as a "former spouse," even if she was his spouse beneficiary immediately before their divorce.

6.  The applicant remarried on 14 February 2004.

7.  On 18 July 2005, the applicant submitted his request to have his spouse added as his beneficiary for SBP.  He explained to DFAS he was remarried.  DFAS asked him to provide them with a copy of his divorce decree.  He sent in all paperwork he had been asked for and thought everything was okay.  He later received a copy of this retiree pay statement which showed he had no SBP election reflected on his account.  He then advised DFAS he wanted his spouse to receive 55% of his base retirement amount after he died.

8.  On 16 June 2006, the applicant asked DFAS to correct his mistake of adding his present spouse as his beneficiary for SBP and to identify his former spouse as his beneficiary for SBP coverage so that he could be in compliance with his Marital Settlement Agreement and in effect their Final Judgment of Dissolution of Marriage.

9.  During the October 2005 through 30 September 2006 Open Enrollment Season, the applicant attempted to add his current spouse as his beneficiary for an SBP annuity and also to provide his former spouse an annuity under the SBP.  On 19 December 2006, DFAS responded that they were unable to process his SBP Open Enrollment Election because it was invalid.  His DD Form 2656-9 was invalid because no open enrollment election may remove an existing designated beneficiary [his spouse] in order to provide coverage for another beneficiary [his former spouse].

10.  The applicant made application to the ABCMR to change his SBP beneficiary from his spouse to former spouse.

11.  On 19 March 2008, the applicant submitted a notarized statement made by his present spouse, Teresa, agreeing to the removal of her name as the existing designated beneficiary in order to provide SBP coverage for his former spouse, Helen.  His current spouse, Teresa, added that she did not agree to the removal of her name from any other benefits to which she is entitled as the applicant's spouse.  This election, she stated, did not preclude her from becoming the designated beneficiary for the SBP in the future, in the case of the death of her husband's former spouse.

12.  The Board does not make decisions based on conditional statements such as that made by the applicant's spouse, "This election, she stated, does not preclude me from becoming the designated beneficiary for the Survivor Benefits Plan, in the future, in the case of death to my husband's former wife."

13.  The SBP is an income maintenance program for the survivors of members of the uniformed services.  Based on the Comptroller General Decision cited, which has many similarities, in the event that the applicant's former spouse, Helen, predeceases him, the applicant will have the option of applying to DFAS to have his present spouse named as his beneficiary for an SBP annuity.  In the event that the applicant predeceases his former spouse and she collects one or more SBP payments, then she dies, the present spouse will not be eligible to have SBP reinstated to her since the purpose and intent of the SBP would have been carried to its conclusion.

BOARD VOTE:

__x____  __x___  ___x__  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 to show the applicant elected his Survivor Benefit Plan coverage be changed from "spouse" to "former spouse" beneficiary on 13 December 2002, the date of the applicant's and Helen's divorce.




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          CHAIRPERSON