IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20090016230 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for termination of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant's original request was not specific.  The Board originally interpreted his vague request as a request for correction of his records to show he did not enroll in the SBP for spouse coverage.  It was not the case.  He wanted to terminate his SBP coverage.

3.  The applicant previously stated that when he retired, he was married to Maria and elected SBP spouse coverage.  He divorced Maria in November 2002.  Their divorce degree was silent regarding the SBP and Maria did not deem the election within 1 year of their divorce.  He then married Mildred.  Mildred had previously been married to another Soldier, but their marriage ended in divorce in May 2003.  He then notified the Defense Finance and Accounting Service (DFAS) of his marriage to Mildred and requested his SBP coverage be restarted.  Mildred's previous husband retired in August 1986 and died in November 2007.  Mildred was subsequently awarded an SBP annuity based on the death of her former husband.  It is against the law for Mildred to draw an SBP annuity from more than one deceased spouse.  Consequently, since Mildred is already drawing an annuity, there is no point of him having SBP coverage for her as there is no benefit for her to have SBP coverage from him.

4.  The Board originally denied his request because he did not provide a copy of his property settlement between himself and Maria and the terms of their divorce were unclear.  He now argues that their property settlement did not award an SBP annuity to Maria and he is therefore in full compliance with his property settlement agreement.

5.  The applicant now provides a copy of his property settlement with his first spouse Maria, dated 1 November 2002, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003862 on 25 August 2009.

2.  The applicant submitted a copy of his property settlement which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant’s records show he was born on 17 May 1939 and enlisted in the Regular Army in July 1960.  He married his first spouse Maria on 14 December 1963.  He served through multiple reenlistments in the Regular Army in various staff and leadership positions and attained the rank/grade of sergeant first class (SFC)/E-7.

4.  He retired on 30 September 1978 and was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 October 1978.  He was credited with 22 years, 2 months, and 9 days of creditable active service.  In connection with his retirement, he elected SBP coverage for spouse and children.

5.  On 1 November 2002, he and Maria were divorced.  Their property settlement agreement stated that Maria is entitled to 50 percent of his retired or retainer pay, but is otherwise silent regarding the SBP.

6.  On 4 May 2004, he married Mildred and, on 7 July 2004, he notified DFAS of his marriage and requested to re-start the SBP.

	a.  Mildred, his current spouse, was previously married to master sergeant (MSG)/E-8 S____ who retired from the Regular Army on 31 August 1986 and was credited with over 26 years of creditable active service.

	b.  Mildred and her first husband MSG S____ were divorced on 2 May 2003.

	c.  On 4 August 2003, prior to her remarriage to the applicant, Mildred requested a deemed election of her former husband's SBP.
7.  On 1 November 2007, Mildred's former spouse MSG S____ died.  His death certificate shows he was married to Debra at the time he died, but his previous wife Mildred was awarded an SBP annuity based on his death.

8.  In January 2009, DFAS issued the applicant an SBP premium bill for $5,280.61, the total premiums he should have paid from the date he requested to re-start his SBP on 4 May 2004 to the date of the bill.

9.  On 26 January 2009, he petitioned the Army Board for Correction of Military Records (ABCMR) to terminate his SBP and submitted a signed and notarized spouse concurrence statement.  The Board erroneously interpreted his request to mean a request for correction of his records to show he did not enroll in the SBP for spouse coverage.

10.  He now provides a copy of his property settlement agreement between himself and his first wife Maria and argues that there was no legal requirement for him to change SBP coverage to her or that she requested a deemed election within 1 year of their divorce.  Since his current spouse Mildred already draws an SBP annuity, there is no benefit for her to have such coverage or for him to pay premiums for a benefit that would never materialize.

11.  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. 
An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

12.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage.  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

13.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.


14.  Department of Defense Financial Management Regulation, Volume 7B, section 4401, regarding technical and administrative changes to the SBP states that an individual may not receive more than one annuity as the surviving spouse or former spouse of different members.  However, an individual may be the recipient of two or more annuities concurrently, so long as only one is a spouse or former spouse annuity.  For example, an individual who was a spouse beneficiary of one member could also be a beneficiary of another member under the insurable interest category.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement, the applicant elected to participate in the SBP for spouse coverage.  He was married to Maria at the time.  

2.  When he divorced Maria in November 2002, his premiums were suspended, but his coverage was not terminated because his decision to participate in the SBP was irrevocable.  His property settlement with Maria, incorporated into their divorce, is silent regarding the SBP.  He therefore was under no legal obligation to change his spouse coverage to former spouse coverage.

3.  When he married Mildred in May 2004, he requested to restart payment of SBP premiums for spouse coverage.  It is unclear if he knew or should have known that she had requested a deemed election of her former spouse's SBP.  It is presumed that he did not know and wanted to ensure Mildred was covered under the SBP.  Nevertheless, when Mildred's former husband died in November 2007 and she started collecting the SBP annuity, he took no action.

4.  The applicant is right.  By law, an individual may not receive more than one annuity as the surviving spouse of different members.  He is also right in that there is no benefit to his spouse or him to pay premiums for coverage that neither can use.  Therefore, in the interest of justice and equity, his SBP coverage should terminate effective May 2004, when he married Mildred.

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 amendment of the ABCMR’s decision in Docket Number AR20090003862, dated 25 August 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he made a timely request in May 2004 not to cover his post-retirement spouse under the SBP,

	b.  showing that his request was received and processed by the appropriate office in a timely manner, and

	c.  having DFAS audit his pay account as a result of this correction to ensure any or all overpayments are reimbursed.



      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090016230



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ABCMR Record of Proceedings (cont)                                         AR20090016230



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