IN THE CASE OF:	   

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120001944 


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 enrollment of his current spouse in the Survivor Benefit Plan (SBP) without retroactive recoupment of premiums.

2.  The applicant states he retired in 2008 and was required to provide SBP coverage for his former spouse by divorce decree.  He completed this action; however, shortly thereafter his former spouse decided to terminate that coverage.  The coverage could not be terminated at that point as he had not yet met the window for withdrawal.  He remarried on 10 January 2010 and attempted to add his new wife as an SBP beneficiary in lieu of his former spouse.  His former spouse completed the required forms to waive her entitlement.  He was advised that his SBP was terminated in June 2010 but his new wife was not added as a beneficiary.  In his attempts to resolve the issue, he went back to court and had his divorce decree modified.  In June 2011, he was notified of a debt being generated due to improper action being under taken in regard to his SBP termination.  He requested a waiver of the indebtedness.  In January 2012, he was advised through his Congressman that the issue of the waiver was moot, his SBP was terminated and his current spouse could not be enrolled.

3.  The applicant provides copies of an SBP timeline; a request to reopen his divorce court case with attached amendment petitions and documents, dated 11 August 2011; his final divorce decree from M____ F____; a Defense Finance and Accounting Service (DFAS) SBP termination request denial, dated 23 January 2009; a DD Form 2656-2 (SBP Termination Request), dated 10 May 2010; a DFAS letter notifying the applicant of the beneficiary termination, dated 3 June 2010; a DD Form 2656-6 (SBP Election Change Certificate), dated 7 January 2011; a DFAS letter outlining their actions with attached supporting documents, dated 10 June 2011; a DD Form 2789 (Waiver/Remission of Indebtedness Application) with supporting letter, dated 17 June 2011; and a letter to and response from his United States Senator.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a retired brigadier general, and his wife, M____, divorced in December 2005.  The divorce decree stated that SBP coverage was to be maintained so long as M____ desired and such coverage was permitted and required by law.

2.  The applicant retired on 1 April 2008 and he elected former spouse coverage under the SBP as required by the terms of the divorce agreement.  The available record does not contain any statements regarding this election from the former spouse at the time of retirement.

3.  At an unspecified date in late 2008, his former spouse decided she did not desire to have SBP coverage.

4.  On 23 January 2009, the applicant was notified that the request to terminate SBP coverage was denied.  The reason given was that the applicant, having been retired only 9 months, did not yet qualify to withdraw.  It stated that a termination request had to be filed within the 24 to 36-month window after reaching eligibility for retired pay.

5.  The applicant remarried on 10 January 2010.  The applicant appears to have completed all required documentation to have his new wife properly recognized and, with the exception of the SBP issue, these actions were completed in a timely manner.

6.  On 10 May 2010, the applicant reapplied for termination of the former spouse SBP which DFAS initially honored on 27 May 2010.

7.  On 3 June 2010, he was notified by DFAS that his adjustment from former spouse coverage to no beneficiary was approved effective 21 May 2010.

8.  On 7 January 2011, the applicant submitted a request to resume SBP coverage naming his new wife as beneficiary.

9.  On 2 June 2011, SBP coverage for his former spouse was restored.

10.  On 13 June 2011, DFAS notified the applicant that the SBP termination had been improperly terminated which created an indebtedness for both his former wife and himself.  Recoupment action was commenced.  The applicant submitted a request for a waiver of this indebtedness on 20 June 2011.

11.  At an undocumented point, the applicant was apparently advised that he had to have his divorce decree amended in order to properly change his SBP former spouse election.

12.  The applicant and his former spouse requested amendment of their divorce decree which was approved by the court on 25 August 2011.  The amendment states, "The Parties agree that the Wife hereby waives any rights she may have to survivor benefits under the Member's Survivor Benefit Plan ('SBP' Subchapter 11, Chapter 74, Title 10, United States Code §§ 1447 et seq.).  The Wife shall cooperate as necessary to allow the Husband to remove the SBP election."  A copy of the divorce decree amendment was forwarded to DFAS.

13.  In an undated letter to the applicant's Senator, an outline of the SBP actions was provided.  The letter admitted that DFAS had made a number of errors in the processing of the applicant's requests.  As a result of the additional review prompted by the Senator's inquiry, the termination of former spouse SBP coverage was reestablished as of the end of May 2010, all SBP payments made after that date were to be refunded, and the indebtedness waiver was rendered moot.  It also noted that because the applicant terminated his SBP coverage, he is not eligible to establish SBP entitlement for his new wife.

14.  Title 10, U.S. Code, subtitle A, part II, chapter 73, subchapter II, section 1448, sets forth the law and procedures for participation in the SBP.

	a.  A person who has a former spouse upon becoming eligible to participate in the SBP may elect to provide an annuity to that former spouse.

	b.  If a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the SBP, and if the Secretary receives a written request from the former spouse concerned, a deemed election is to be shown to have been made.

	c.  Once an election to participate is made, it is irrevocable except that 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 (or former spouse's) concurrence is required.  No premiums will be refunded to those who opt to disenroll.

	d.  Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and participation in the SBP may not be resumed later except through a qualified election under subsection (a), paragraph (5), or subparagraph (G).

	e.  Subsection (a), paragraph (5) (Participation by Person Marrying After Retirement), states a person who is not married and 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.

	f.  Payment of premiums for adding a new spouse commences on the first anniversary of marriage.

15.  Title 10, U.S. Code, subtitle A, part II, chapter 73, subchapter II, section 1450(f), provides for a change in election of insurable interest or former spouse beneficiary.

	a.  Section 1450(f)(1) provides that a person who elects to provide an annuity to a person designated under section 1448(b) may change that election and provide an annuity to a spouse or dependent child.  Any such change of election is subject to the same rules with respect to execution, revocation, and effectiveness as are set forth in section 1448(a)(5).  A change of election under this subsection to provide an annuity to a spouse instead of a former spouse may (subject to paragraph (2)) be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(B).

	b.  Section 1450(f)(2) provides that a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect to provide an annuity to a former spouse (or to both a former spouse and child), 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 under paragraph (1) unless the following requirements (whichever are applicable in a particular case) are satisfied:

		(i)  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was divorced at the time he retired and under a court order to elect former spouse coverage under the SBP.

2.  Based on the conflicting and contradictory actions resulting from the applicant's attempts to discontinue former spouse SBP coverage and to establish spouse coverage, it is clear that neither he nor his former spouse were properly informed and apprised of the requirements and consequences of the election.

3.  Based on the fact that the former spouse requested not to participate shortly after becoming entitled and the court amended the divorce decree, it is reasonable to presume that had the former spouse been properly informed of the requirements and consequences of the election, she would have declined SBP coverage at the time the applicant retired and the applicant would have made no SBP election.

4.  Although the applicant clearly was misinformed and given conflicting and contradictory information, the Board does not have the authority waive the statutory starting date that SBP premiums commence related to the addition of his new spouse. 

5.  Therefore, it is appropriate to correct the records as shown below as a matter of equity in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____x__  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

	a.  if his former spouse submitted a deemed election, it was revoked by his former spouse prior to his retirement;

	b.  he did not make an election to participate in the SBP at the time of retirement; and

	c.  he notified DFAS of his remarriage and timely filed an application for full spouse coverage under the SBP.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to waiving recoupment of SBP premiums for the period in question.



      ____________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)                                         AR20120001944



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ABCMR Record of Proceedings (cont)                                         AR20120001944



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