IN THE CASE OF:	   

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130001939 


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 Survivor Benefit Plan (SBP) beneficiary/recipient name be changed from Barbara to Beverly.  In effect, he requests correction of his records to show he changed his SBP election from former spouse to spouse coverage. 

2.  The applicant states the current beneficiary is ineligible due to her remarriage on 9 December 2006 and her signature on the DD Form 2656-10 (Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election). 

3.  The applicant provides:

* his marriage license
* his divorce decree
* his former spouse's marriage certificate
* DD Form 2656-10
* Letter to the Defense Finance and Accounting Service (DFAS)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant and his former spouse Barbara were married on 12 June 1963. 

3.  Having had prior service, the applicant enlisted in the Regular Army on 15 October 1973.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  On 17 December 1982, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Barbara and they had two children, Paula, born on XX July 1965, and Troy, born on XX January 1970.  He elected spouse and children SBP coverage based on a reduced amount of $500.00

5.  He retired on 28 February 1983 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 March 1983. 

6.  On 4 April 1995, he and Barbara were divorced.  Their divorce decree incorporated a written agreement that gave Barbara an interest in the SBP as long as she remained unmarried.   The applicant also submitted a DD Form 2656-10 that shows:

* the election was made pursuant to the requirements of a court order
* the election was made pursuant to a written agreement previously entered into voluntarily as part of or incident to proceedings of divorce
* the voluntary written agreement was incorporated, ratified, or approved by a court order

7.  His DFAS pay records show he had former spouse SBP coverage effective 24 August 1995 with Barbara listed as the SBP beneficiary. 

8.  He married Beverly on 13 December 2001. 

9.  He provides a marriage certificate that shows Barbara remarried in December 2006 at age 60.
10.  On 16 October 2012, he corresponded with DFAS regarding a change in his SBP beneficiary.  He indicated his SBP would be paid up by October 2013.  He will have paid 360 months and he would be 70 years of age. 

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

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.

13.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

14.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

15.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

16.  Title 10, U.S. Code, section 1450(b) (Termination of Annuity for Death, Remarriage before Age 55, Etc) states in (1) (General Rule), an annuity payable to the beneficiary terminates effective as of the first day of the month in which eligibility is lost; and (2) (Termination of spouse annuity upon death or remarriage before age 55), an annuity for a surviving spouse or former spouse shall be paid to the surviving spouse or former spouse while the surviving spouse or former spouse is living or, if the surviving spouse or former spouse remarries.





17.  Title 10, U.S. Code, section 1450(f) (Change in Election of Insurable Interest or Former Spouse Beneficiary) states in:

	a.  Sub-paragraph (1) (Authorized Changes), (A) a person who elects to provide an annuity to a person designated by him under section 1448(b) o this title may, subject to paragraph (2), change that election and provide an annuity to his spouse or dependent child; (B), The Secretary concerned shall notify the former spouse or other natural person previously designated under section 1448(b) of this title of any change of election under subparagraph (A); and (C) 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) of this title (without regard to the eligibility of the person making the change of election to make such an election under that section).  Notwithstanding the preceding sentence, 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) of this title.

	b.  Sub-paragraph (2) (Limitation on change in beneficiary when former spouse coverage is in effect; a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect under section 1448(b) of this title 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, 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. 

		(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 under paragraph (1); and (ii) certifies to the Secretary concerned that the statement is current and in effect.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in connection with his retirement in 1983 the applicant elected SBP coverage for spouse and children.  The applicant and his former spouse Barbara were divorced in April 1995.  It appears his former spouse, Barbara, made a timely request for a deemed SBP election in compliance with the terms of the divorce.  His former spouse election became effective in August 1995. 

2.  Although it appears clear from the divorce decree and accompanying agreement that the applicant and his former spouse intended for her SBP coverage to terminate upon her subsequent remarriage, which would in effect unencumber his SBP and make it available to his current spouse, such essentially automatic or self-executing termination is not authorized by law.  Accordingly, the Board may not grant the requested relief. 

3.  Further, contrary to the applicant's understanding, his former spouse remains eligible for the annuity.  Again, it is the Federal statute which controls rather than the terms of the divorce decree and agreement.  Because her remarriage did not occur until after she reached age 55, in the event of the applicant's death, his former spouse would receive the SBP annuity.   If the applicant desires to change his SBP coverage to spouse coverage, in accordance with Title 10, U.S. Code, section 145091) and (2), he must obtain an order modifying the previous order and which permits the removal of his former spouse coverage and election of his current spouse.  

4.  If the applicant was able to obtain such a modifying order, he is advised that DFAS would be able to make the change, upon presentation of appropriate supporting documentary evidence, without intervention by this Board. 

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130001939





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ABCMR Record of Proceedings (cont)                                         AR20130001939



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