IN THE CASE OF:	  

		BOARD DATE:	  29 October 2014

		DOCKET NUMBER:  AR20140002640 


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 his records to show reinstatement of his Survivor Benefit Plan (SBP) with spouse coverage.

2.  The applicant states he had SBP with former spouse coverage.  His former spouse died on 27 October 2013, and he immediately notified the Defense Finance and Accounting Service (DFAS) of her death.  At that time, he requested that his SBP be changed to spouse coverage with his current spouse as beneficiary.  DFAS denied his request on 16 January 2014.

3.  The applicant provides the following documents –

* DA Form 1041 (Election of Options Under The Uniformed Services Contingency Option Act of 1953)
* his current marriage certificate
* the former spouse's death certificate
* DD Form 2656-6 (SBP Election Change Certificate)
* letter from DFAS
* letter to a U.S. Senator
* extract of Department of Defense Instruction (DODI) Number 1332.42 (Survivor Annuity Program Administration), dated 23 June 2009


CONSIDERATION OF EVIDENCE:

1.  The applicant had honorable enlisted service in the Regular Army from 
27 July 1940 through 31 December 1963.  He attained the rank of master sergeant/pay grade E-8.

2.  The applicant and Clara J. married on 30 May 1949.

3.  A DA Form 1041, dated 18 July 1958, shows the applicant indicated that he did not desire to received reduced retired pay in order to provide an annuity for his dependents and that it was his original election.

4.  An AGPZ Form 977 (Data for Retired Pay), dated 29 October 1963, provided information pertaining to the applicant's retired pay.  It also shows in item 29 (Retired Servicemen's Family Protection Plan), an "X" in the box for "Negative DA Form 1041" and comment, "is attached."

5.  He was placed on the retired list effective 1 January 1964.

6.  In support of his application, the applicant provides the following documents:

   a.  State of Tennessee, Cumberland County, Marriage Certificate, that shows the applicant and Ruby L. B--- were married on 27 July 1992.

   b.  State of Michigan, Department of Community Health, Certificate of Death, that shows the applicant's former spouse (Clara J. H-----) died on 27 October 2013.  It also shows she was divorced at the time of her death.

   c.  DD Form 2656-6, that shows the applicant requested a change in SBP coverage from former spouse coverage.

(1) It also shows in –

* Section III (Conditions That Trigger Eligibility to Change Coverage), item 8 (I am requesting a change in coverage based on) –

* "X" in the box for "Remarriage (A member whose spouse coverage is suspended due to death of the spouse or divorce has three options upon remarriage)
* "X" in box 1 (Resume existing level of coverage for my new spouse)

* Section VI (Spouse and Child(ren) Information), he entered personal information pertaining to his current spouse (Ruby L.)
 
    	(2)  The form is not signed by the applicant or dated.

   d.  DFAS, Retired and Annuitant Pay, letter, dated 16 January 2014, that notified the applicant that DFAS was unable to process his request regarding the election of SBP coverage for his current spouse because the laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held.  Therefore, the law does not permit DFAS to add the applicant's current spouse to his SBP coverage.  He was also advised that he may have the option to elect for spouse coverage during a future open season enrollment.

   e.  A letter to Senator Bob C-----, U.S. Senator, dated 19 January 2014, that shows the applicant requested assistance in getting his SBP changed from former spouse to spouse coverage.  He cited paragraphs in DODI 1332.42 that he believes provide for the change in coverage he was requesting.

   f.  DODI 1332.42 provides responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the SBP and the Reserve Component Survivor Benefit Plan (RCSBP), hereafter referred to collectively as the "Program."  The applicant draws attention to the following extracts (emphasis added) from the DODI:

* Enclosure 3 (Procedures), paragraph 1 (Members Eligible to Elect Coverage), lists an eligible member as one who, upon retiring from active service or active duty, has a spouse, former spouse, or dependent child.  It also shows that a member, who is otherwise eligible and who does not have a spouse or dependent child and did not elect coverage for a former spouse (if applicable) at the time of eligibility for the Program, may elect coverage for a person who has an insurable interest in the member.

* Paragraph 6 (Elections), subparagraph c(3), provides that a member who elected insurable interest coverage may, upon death of such beneficiary, elect to cover a new beneficiary who is a natural person with an insurable interest in the member (emphasis added).  Such an election must be made prior to the end of the 180-day period beginning on the date of the death of the previous beneficiary and requires the member to pay, if applicable, an additional amount described in subparagraph 13.h.(2) of the enclosure.  Such election is also subject to paragraph 10.o. of the enclosure.
* Paragraph 7 (Changing an Election or Discontinuing Participation in SBP or RCSBP) provides that a member shall have an opportunity to change an election or discontinue participation as described in this paragraph; however, a member who is required to provide former spouse coverage may not change or discontinue such coverage unless the applicable requirements of paragraph 9.e. of the enclosure have been satisfied.  Subparagraph f, shows that a member who has elected insurable interest coverage for someone other than a former spouse (emphasis added) may terminate the coverage.  The options available to a member who terminates insurable interest coverage are:

* Change the election to cover a spouse or dependent child.  Such a change must be made in accordance with the time limit specified in paragraph 7.h. of the enclosure.
* If the reason for terminating coverage is the death of the beneficiary, the member may elect a new insurable interest beneficiary as described in subparagraph 6.c.(3) of the enclosure.

7.  In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  However, DFAS failed to provide any additional information or documents.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Retiring members and spouses were to be informed of the SBP options and effects.

9.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

10.  DODI 1332.42, Enclosure 3, paragraph 9 (Former Spouse Provision), subparagraph e, provides that a member who has elected former spouse or former spouse and child coverage either as required by court order or by written agreement, whether or not voluntarily, who seeks to elect coverage for a spouse, a child, or a spouse and child must furnish to the Secretary concerned the following evidence:

* When an election was required by court order:  A certified copy of the court order that is regular on its face, modifies the provisions of all previous court orders that required the original election, and certifies to the Secretary concerned that the latest court order is valid and in effect.
* When an election was made by written agreement and not incorporated, ratified, or approved by a court order:  A written statement, signed by the former spouse beneficiary, agreeing to such a change in coverage and certifying to the Secretary concerned that the statement is current and in effect.

11.  Effective 8 January 2014, the DFAS Office of General Counsel clarified the laws regarding the change of SBP coverage from former spouse to spouse upon the death of the former spouse.

   a.  Any retiree that is married and elects spouse coverage at retirement, then divorces that spouse and elects former spouse coverage for the former spouse, cannot elect to cover his/her current spouse upon the former spouse's death.  It does not matter whether or not the former spouse SBP coverage was court-ordered.  Once the former spouse dies, the retiree cannot add his/her new spouse to the SBP.  In this situation, the only circumstance under which a retiree can change his/her SBP coverage from former spouse to spouse is if the change is made while the former spouse is alive.

   b.  Any retiree who has both a spouse and former spouse at retirement, who elects former spouse SBP coverage pursuant to a court order, is eligible to change his/her SBP coverage to spouse upon the former spouse's death.  This is because the retiree's actual spouse was an eligible beneficiary at retirement, but the retiree was required by a court order to establish former spouse coverage.  However, if the retiree made a voluntary election for former spouse coverage at retirement, while he/she also had a current spouse, then SBP coverage cannot be changed to spouse upon the former spouse's death. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show reinstatement of his SBP with spouse coverage because he had SBP with former spouse coverage, his former spouse died, he timely notified DFAS of her death, and he requested that his SBP be changed to spouse coverage.

2.  Records show the applicant retired from active Army service on 31 December 1963 prior to the implementation of the SBP.  The evidence of record shows he was married to Clara J. H----- at the time.  The date that they divorced is not known.



3.  On an unspecified date, presumably during an Open Enrollment period subsequent to the implementation of the SBP, he submitted an SBP Election Certificate and elected to participate in the SBP.  It appears he also elected SBP with former spouse coverage.

4.  The applicant married Ruby L. on 27 July 1992.  

5.  His former spouse (Clara J. H-----) died on 27 October 2013 and that the applicant requested that his SBP coverage be changed from former spouse to spouse.

6.  Any retiree who is married and elects spouse coverage at retirement, then divorces that spouse and elects former spouse coverage for the former spouse, cannot elect to cover his current spouse upon the former spouse's death.  It does not matter whether or not the former spouse SBP coverage was court-ordered.  Once the former spouse dies, the retiree cannot add his new spouse to the SBP.

7.  A DFAS official notified the applicant that DFAS was unable to process his request regarding the election of SBP coverage for his current spouse because the laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held.  Thus, the law does not permit DFAS to add the applicant's current spouse to his SBP coverage.

8.  Therefore, in view of the foregoing, the applicant is not entitled to the 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)                                         AR20140002640



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ABCMR Record of Proceedings (cont)                                         AR20140002640



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