IN THE CASE OF:  

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140003974 


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 removal of former spouse Survivor Benefit Plan (SBP) coverage and reinstatement of spouse coverage.

2.  The applicant states that he and his former spouse agreed that she would be removed as his SBP beneficiary effective 10 August 2008 and this agreement was included in the divorce decree.  He has remarried.  It was his understanding that the court order would be sufficient to effect this change to his SBP.  However, the Defense Finance and Accounting Service (DFAS) advised him that the law governing SBP states that an election for former spouse SBP coverage terminates any prior coverage held and that he would have to petition the Army Board for Correction of Military Records (ABCMR) concerning his request.

3.  The applicant provides the following documents –

* divorce decree with property settlement and child support agreement
* his current marriage certificate
* two letters to DFAS
* DFAS letter, dated 4 February 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant had honorable active duty service as a commissioned officer in the Regular Army from 15 August 1966 through 31 May 1990.  He attained the rank of colonel/pay grade O-6.
2.  The applicant and Marsha K. married on 14 December 1974.

3.  A DA Form 4240 (Data for Payment of Retired Army Personnel) shows in –

* Part III (SBP Election) –

* item 12 (Check one of the following to indicate the type of coverage you desire), he elected spouse and children coverage
* item 13 (If you checked 12a, b, or c, do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay?), he elected the coverage to be based on a reduced portion of retired pay ($1,600.00)

* he indicated he was married to Marsha K. and had two dependent children

* the applicant and Retirement Services Officer placed their signatures on the document on 14 March 1990

* the applicant's spouse (Marsha K.) concurred with the SBP election on		 22 April 1990

4.  The applicant was placed on the retired list effective 1 June 1990.

5.  In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  A DFAS official indicated that the applicant made a valid election to convert his SBP coverage from spouse to former spouse coverage within the 1 year timeframe permitted by law.  However, a copy of a "deemed election" form was not on file.

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

   a.  The Superior Court for the County of DeKalb, State of Georgia, Civil Action Number 92-4312-4, Final Judgment and Decree and Order of the Court (Property Settlement and Child Support Agreement, made on 20 March 1992), approved on 28 May 1992.  It shows, in pertinent part, "Military survivors benefits assistants [sic] pay ($1,600.00 per month) to remain in Marsha's name as beneficiary until age 60 (August 10, 2008).  Husband will keep this policy in force with Wife as beneficiary until she reaches age 60."  It also shows, "Wife can continue as beneficiary for two years with monthly payments made directly to Husband for the period August 10, 2008 to August 8, 2010."

   b.  State of Georgia, County of DeKalb, Marriage Certificate, that shows the applicant and Janette E. P------ M--------- married on 12 August 1993.

   c.  Two letters from the applicant to DFAS, dated 16 September 2013 and
9 January 2014, in which he requested a change to his SBP coverage from former spouse to spouse coverage based on the court-ordered action.

   d.  DFAS, Retired and Annuitant Pay, London, KY, letter, dated 4 February 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 advised that he had the option to petition the ABCMR concerning his request.  He was also advised that he may have the option to elect for spouse coverage during a future open season enrollment.

7.  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.

8.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

9.  Title 10, U. S. Code, section 1450(f), subparagraph 1450(f)(2)(A) requires that when a retiree's divorce decree (or a written agreement incorporated into the divorce decree) required him to elect an SBP former spouse beneficiary, before he may later change this mandatory election, he must obtain from a court with proper jurisdiction over the matter an order modifying the original decree by releasing him from this requirement.

10.  Effective 8 January 2014, DFAS's 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 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/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 the 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 that his SBP coverage was changed from former spouse to spouse coverage based on the provisions set forth in his court-ordered divorce decree.

2.  The evidence of record shows the applicant initially elected SBP coverage with spouse coverage (reduced amount) to be effective 1 June 1990.  He was divorced on 28 May 1992 and DFAS changed his SBP coverage to former spouse coverage based, in pertinent part, on the court-ordered divorce decree that stipulated the applicant would maintain SBP coverage for his former spouse (Marsha K.) at least through 10 August 2008 (or as late as 8 August 2010, if she reimbursed him for the premiums).

3.  The applicant married Janette P. on 12 August 1993.

4.  In late 2013, he requested that his SBP coverage be changed from former spouse to spouse coverage.  He informed DFAS that the provision set forth in the court-ordered divorce decree requiring him to maintain former spouse coverage had been satisfied and that he is currently married.  Therefore, he requested reinstatement of SBP with spouse coverage and his current spouse (Janette P.) as the beneficiary; however, DFAS denied his request.

5.  The law shows that a retiree who elected to provide former spouse coverage may elect to change that coverage to spouse coverage. However, before this mandatory election may be changed, the retiree must obtain from a court with proper jurisdiction over the matter an order modifying the original decree by releasing him/her from this requirement.  The applicant's original court-ordered divorce decree stipulates that he was released from the mandatory election requirement on 10 August 2008.  Thus, in this case, the releasing requirement is provided in the original court-ordered divorce decree. Therefore, the applicant is entitled to correction of his records to show SBP with spouse coverage (reduced amount), with his current spouse named as the beneficiary, effective the date of his application to this Board.
BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he changed his Survivor Benefit Plan coverage from former spouse to spouse coverage (reduced amount), with his current spouse (Janette P. O-----) named as the beneficiary, effective 11 August 2010, pursuant to the self-executing terms of his 28 May 1992 divorce decree and in accordance with 
Title 10 U.S. Code, section 1450(f).




      _______ _   _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)                                         AR20140003974



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003974



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1