IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20100007842 


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 correction of the military records of her husband, a deceased former service member (FSM), to show he elected spouse coverage for her under the Survivor Benefit Plan (SBP).

2.  The applicant states she was married to the FSM for almost 50 years and they raised 3 children.  She states when he returned from Vietnam he was a changed person and in 1976 they were divorced.  She states the FSM stressed that their 20 years of military life should not be wasted and they remarried a year and a half after their divorce.  She states the FSM told her he could not elect spouse coverage under the SBP because they were divorced when he retired from the Army.  She states he told her he wanted her to be taken care of if anything ever happened to him and they decided to enroll in the SBP in 1993.  

3.  The applicant states when she applied for her SBP benefit after the FSM's death the Defense Finance and Accounting Service (DFAS) informed her that E___l L____f J___s was already receiving the benefit.  She then provided documents to DFAS showing she and the FSM were still married and she was his legal wife.  DFAS stopped payment to E___l until the matter could be resolved.  She states it took from 2005 until 4 March 2009 for her to receive a judgment from a civil court declaring her the FSM's legal surviving spouse and the marriage of the FSM and E___l null and void.

4.  The applicant states she spent 20 years as a dedicated military wife during the FSM's military career.  She is now 72 years old and has numerous health problems.
5.  The applicant provides copies of:

* a letter with 15 enclosures from her attorney to the DFAS, dated
26 October 2009
* her judgment declaring her the legal surviving spouse  
* the FSM's Certificate of Death
* a letter with three enclosures from DFAS to her attorney, dated
29 January 2010

CONSIDERATION OF EVIDENCE:

1.  The evidence in this case was taken from information obtained from the records at DFAS and provided in their letter, dated 29 January 2010, to the applicant's attorney.

2.  The FSM and the applicant were divorced on 24 February 1976.  The FSM retired from the Army on 1 December 1976 in the rank of lieutenant colonel.  At the time of his retirement the applicant did not have an eligible beneficiary for SBP.  (Former spouse coverage was not provided for under the SBP until 1982.)

3.  On 12 April 1978, the FSM and the applicant were remarried.  The FSM did not elect to provide SBP spouse coverage within 1 year of their remarriage.

4.  On 8 April 1983, the FSM married E____l without divorcing the applicant.

5.  In January 1993, during the SBP open enrollment period from 1 April 1992 through 31 March 1993, the FSM elected SBP spouse coverage using a base amount of $1,400.00 and naming E___l as his spouse.  

6.  The FSM died on 31 March 2005.  

7.  A Judgment, dated 21 December 2009, from the Ninth Judicial District Court, Parish of Rapides, State of Louisiana, declared the applicant the legal surviving spouse of the FSM and the marriage between the FSM and E___l to be null and void.  It also declared that E___l was a good faith putative spouse.  

8.  The letter from DFAS, dated 29 January 2010, stated that because the courts have conclusively determined that the applicant was the legal spouse of the FSM at the time of his death, the FSM's open enrollment election of SBP coverage for E___ l as his spouse must be considered invalid.  In addition, The Comptroller General of the U.S has held that a defective {Open Season} election invalidates the SBP election itself.  DFAS states that consistent with previous decisions by the Comptroller of the U.S., the invalidation of the FSM's SBP coverage authorizes DFAS to pay all costs deducted from his retired pay, as a result of the invalid SBP election to the proper beneficiary.  The FSM did not designate a beneficiary to receive any unpaid compensation or arrears of pay.  Therefore, as the legal surviving spouse, the applicant is the proper beneficiary to receive the full amount of all SBP costs deducted from the FSM's retired pay from February 1993 until his death.

9.  DFAS stated they would not issue any payment to the applicant representing the incorrect SBP costs until a decision had been rendered by the ABCMR concerning her application for correction of the FSM's records.

10.  Public Law 92-425, enacted on 21 September 1972, established the SBP.  The SBP provided that military members 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.

11.  Public Law 97-252, enacted on 8 September 1982, authorized former spouse coverage under the SBP for retiring members.

12.  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.  

13.  Department of Defense Financial Management Regulation 7000.14-R, 
Volume 7B, paragraph 430902 states Public Law 101-189 (amended by Public Law 101-510) provided an open enrollment period from 1 April 1992 through     31 March 1993.  

14.  Paragraph 430909 states that in addition to the SBP premium for an open enrollment election for spouse or former spouse, there is an additional premium charged on the basis of the number of years the member has been retired.  The number of years was determined from the date of initial retirement through the date the election became effective. Months and days less than a full year were ignored.

15.  57 Comptroller General Decision 426, B-190609, dated 20 April 1978, and 
63 Comptroller General Decision 63, B-212005, dated 29 November 1983, held that in the case of a retired member who must make an affirmative election to participate in the SBP, the completion of the form is the evidence of the member's election to participate.  However, when it is clear the member made an election to participate for the purpose of providing an annuity to an ineligible beneficiary the election to participate is defective and must be considered invalid.

16.  The laws of the states in which each woman is domiciled recognize that good faith putative spouses have an insurable interest in their spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's military records should be corrected to show he elected spouse coverage for her under the SBP.

2.  Based on the date of their first marriage and the date of his retirement, the applicant was married to the FSM during nearly his entire period of service.

3.  The Ninth Judicial District Court, Parish of Rapides, State of Louisiana, declared the applicant the legal surviving spouse of the FSM and the marriage between the FSM and E___l to be null and void.

4.  The FSM could not have provided SBP coverage for the applicant at the time of his retirement as they were not married and there were no provisions for former spouse coverage at the time.  The FSM failed to enroll in the SBP and elect spouse coverage within 1 year of their remarriage in 1978.  

5.  The FSM's only option to enroll was during one of the SBP Open Seasons.  However, when he enrolled during the 1993 SBP Open Season he named E___l as his spouse.  This clearly showed the FSM made an election to participate in the SBP for the purpose of providing an annuity to an ineligible beneficiary.   Therefore, as provided for in two General Comptroller decisions, his election to participate is defective and must be considered invalid.

6.  Although the applicant stated she and the FSM had decided to enroll in the SBP in 1993, the evidence shows he had "married" E___l in 1983.  Since he enrolled in SBP in 1993 for spouse coverage for someone other than his lawful spouse (i.e., the applicant), it is clear the FSM's intent was not to provide SBP coverage for his lawful spouse, but for E___l.  Further, E___l, as a good faith putative spouse, had an insurable interest in the applicant's husband.

7.  In view of the above, there is insufficient evidence to show the applicant is entitled to an SBP annuity or otherwise has a superior equitable interest.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  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.



      ____________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)                                         AR20100007842



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)