IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090020165 


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 his current spouse be enrolled in the Survivor Benefit Plan (SBP).

2.  The applicant states that he was denied SBP coverage by officials at the Defense Finance and Accounting Service (DFAS) for his current spouse.  DFAS' decision was based on his non-selection of spouse SBP in 1987.  However, he was unmarried at the time and was eligible for children only coverage.  If he had been married, then his former spouse would have had to sign a form to decline the SBP.

3.  On 5 April 2010, the applicant submitted a statement wherein he indicated he was married for 23 years and his wife divorced him and left him with 4 children.  The court system did not award her any money in the divorce.  He was on active duty at the time of his divorce.  If he had been retired at the time of the divorce, his former spouse would have asked for half of his retirement pay and the court system may have considered it.  When he retired, he provided a copy of his divorce document to the retirement services office.  He was ineligible to make a spouse SBP election because he was divorced.  Had he been eligible for spouse election, his spouse would have had to consent to his election at the time.  He is now married and has a 2-year old daughter.  He applied for SBP coverage for his spouse and daughter but his request was denied. 



4.  The applicant provides a copy of his divorce decree, dated 8 December 1986; a copy of his marriage certificate, dated 31 December 2007; a copy of a
DD Form 1172 (Application for Uniformed Services Identification Card), dated 14 January 2008; and a copy of a letter, dated 27 October 2008, from DFAS, Retired and Annuity Branch, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was born on 7 March 1944 and he entered active duty on 18 March 1963.  He married his first spouse, Jamie, on 4 October 1963.  He served in the military through multiple enlistments or extensions until he was honorably discharged on 4 April 1971 to accept an appointment as a warrant officer (WO).

2.  The applicant was appointed as a WO and he executed an oath of office on 
5 April 1971.  He served in various positions within and outside of the Continental United States.  He was promoted to chief warrant officer four (CW4).  

3.  On 13 December 1986, he and Jamie were divorced.  His divorce decree is silent with respect to the SBP.

4.  On 20 April 1987, in connection with his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was not married but had dependent children and listed his dependents sons as: Don, born on 31 January 1969; Michael, born on 6 March 1970; Bill, born on 22 June 1973; and Tom, born on 23 March 1981.  He further elected "children only" coverage, full amount, under the SBP.  He was further counseled by an SBP counselor and signed a statement acknowledging the following:

I, [Applicant], acknowledge that I received information on the Uniformed Services Survivor Benefit Plan elections available to me on my retirement and the effects of these elections.  I understand these elections as explained to me.  I am aware that after I retire, the election I make before retirement is, in general, permanent and irrevocable by me.

5.  He was honorably retired on 31 May 1987 and he was placed on the retired list in his retired rank of CW4 on 1 June 1987.  He was credited with over 
23 years of creditable active service.

6.  On 31 December 2007, he married his second spouse, Jennifer.

7.  On 27 October 2008, by letter, DFAS notified him that an adjustment was made in the SBP portion of his retired pay account based on his request and his dependent child certificate.  

8.  An email, dated 6 April 2010, from DFAS indicates that he submitted a request for spouse coverage on 3 October 2008, well within the 1 year required by law.  However, neither his original election nor his divorce decree was on file.  DFAS received his divorce decree on 15 January 2009. 

9.  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.

10.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to reflect his wife as the beneficiary of his SBP coverage.

2.  The evidence of record shows that upon retirement in 1987, he executed an SBP Election Certificate, electing children only SBP coverage based on the full amount.  He did not have a spouse at the time.  He and his first spouse were divorced prior to his retirement.  Their divorce decree is silent regarding the SBP. He therefore was under no legal obligation to change the election he made at retirement to former spouse coverage.

3.  He and his current spouse were married on 31 December 2007.  The law permitted him to add his spouse within 1 year of their marriage.  According to the DFAS email, he submitted a request to enroll his wife and child within 1 year of his remarriage.  But DFAS officials did not have his original election or his divorce decree and were unsure if he was under a court-order to make a former spouse election.  He received confirmation of an adjustment to the SBP portion of his retired pay based on his request and the submission of his dependent child's birth certificate but he was denied spouse coverage. 

4.  It is clear that he attempted to add his new spouse to the SBP in a timely fashion.  While he may have been more proactive by submitting a copy of his divorce decree, that fact does not justify denying him the opportunity to enroll his spouse in the SBP.  Therefore, he is entitled to correction of his records to show he enrolled his wife in the SBP.

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 by:

   a.  showing he made a timely request to cover his post-retirement spouse under the SBP within 1 year of his marriage on 31 December 2007;

   b.  showing his request was received and processed by the appropriate office in a timely manner; and
   
   c.  DFAS auditing his pay account and applying the appropriate SBP premiums for "spouse and child coverage" based on the full amount, retroactive to the date of his marriage on 31 December 2007.



      _______ _   _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)                                         AR20090020165



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ABCMR Record of Proceedings (cont)                                         AR20090020165



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