IN THE CASE OF:	   

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003363 


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 his paid-up Survivor Benefit Plan (SBP) coverage from former spouse to spouse coverage. 

2.  The applicant states:

* upon his retirement, he elected full coverage for his spouse under the SBP; however, he and his spouse were divorced after his retirement
* he continued to provide coverage for his former spouse, voluntarily and not part of a court order or a written agreement because of moral obligation
* he remarried and has been married to his current spouse for 20 years; he was always under the impression that upon the death of his former spouse, he would be able to transfer coverage to current spouse
* he reported his former spouse’s death in a timely manner but he did not receive a timely response from the Defense Finance and Accounting Service (DFAS) 
* when he inquired, he was told he could not change the election because an election for former spouse SBP coverage terminated any previous coverage held 
* he does not understand the rationale or the letter he received; he believes this is unfair and unjust to someone who served and paid-up all his premiums 

3.  The applicant provides:

* DD Form 2656-6 (SBP Change Certificate)
* Divorce decree from Liliane
* Death certificate of Liliane
* Marriage document to Monique
* Letter from DFAS

CONSIDERATION OF EVIDENCE:

1.  The applicant and his former spouse (now deceased) Liliane were married on 28 March 1959. 

2.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 16 April 1961.  He entered active duty on 4 July 1961.  

3.  He served in a variety of stateside or overseas assignments and he attained the rank of colonel (COL).  

4.  He retired on 30 September 1982 and he was placed on the Retired List in his retired grade of COL/O-6 on 1 October 1982.  

5.  His records do not contain DA Form 4240 (Data for Payment of Retired Army Personnel).  However, subsequent correspondence from DFAS indicated he elected spouse coverage based on the full amount. 

6.  On 13 April 1990, he and Liliane were divorced.  His divorce decree (foreign but translated to English) is silent with respect to the SBP.  

7.  His election from spouse to former spouse coverage is also not available for review with this case.  However, DFAS indicated he elected former spouse coverage. 

8.  On 29 December 1993, he married Monique.  He provides a foreign marriage contact with a translation to English. 

9.  On 18 October 2013, his former spouse died.  He provides a foreign death certificate with English sub-titles. 

10.  On 4 November 2013, he submitted a DD Form 2656-6 to DFAS.  He indicated his current coverage is "Former Spouse," he is requesting a change in coverage based on his remarriage, and he wishes to resume his existing level of coverage for his new spouse.  He and a witness authenticated this form with their signatures.
11.  On 17 December “2016,” DFAS denied his request.  A DFAS official stated their office is unable to process his request.  The law governing the SBP states that an election for former spouse coverage terminates any prior coverage held.  Therefore, the law does not permit him to add his current spouse onto his SBP coverage.  He may have the option to elect spouse coverage during a future Open Season to be determined by Congress.  

12.  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

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

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

15.  Title 10, U.S. Code, section 1448 states in:

	a.  Sub-paragraph (b)(3)(A)(i) that a person who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan, may elect to provide an annuity to that former spouse.  

     b.  Sub-paragraph (b)(3)(A)(ii) states that any such election terminates any previous coverage under the Plan.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates at the time of his retirement in 1982 the applicant was married to Liliane and he elected spouse SBP coverage based on the full amount.  

2.  The available evidence also shows he and Liliane were divorced in April 1990. The divorce decree he provides did not obligate him to change his SBP election to "former spouse" SBP coverage.  A change in SBP to former spouse beneficiary would have had to have been a strictly voluntary action on the part of the applicant, which the evidence of record shows he did make.  Thus the voluntary change in category (now former spouse) terminated his previous coverage (spouse). 

3.  Although his former spouse is now deceased and he currently has no SBP beneficiary, regrettably, the voluntary change he made in 1993 (to former spouse coverage) terminated his prior election (spouse coverage).  His next possible opportunity to effect a change in coverage is during an Open Season.  It is unclear when Congress will authorize an Open Season, but he is advised to read Army Echoes, the Army bulletin published, and now online, to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  If Congress establishes another SBP Open Enrollment Season, Army Echoes will give guidance on how to enroll his spouse in the SBP.

4.  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)                                         AR20140003363



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ABCMR Record of Proceedings (cont)                                         AR20140003363



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