IN THE CASE OF:
BOARD DATE: 7 January 2015
DOCKET NUMBER: AR20140008137
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 change his Survivor Benefit Plan (SBP) coverage from former spouse to spouse coverage.
2. The applicant states:
* his original SBP election was former spouse
* his former spouse recently passed away
* he submitted a request to add his current spouse for SBP spouse coverage and was denied due to recent changes to the SBP law
* he has paid his share into the SBP for 360 payments and now his current wife is not eligible for the benefit
* he invested so much into his military career and the monies paid into the SBP, now he is out the premiums and his current wife is without coverage
3. The applicant provides:
* Retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Marriage certificate
* Letter from the Defense Finance and Accounting Service (DFAS)
* Death certificate
* Divorce decree
* Two DD Forms 2656-6 (SBP Election Change Certificate)
CONSIDERATION OF EVIDENCE:
1. He enlisted in the Regular Army on 28 July 1960. He served in a variety of assignments and attained the rank of first sergeant (1SG)/E-8.
2. The applicant and his former spouse (now deceased) Karan were married on
9 June 1978.
3. He retired on 4 March 1981 and he was placed on the Retired List in his retired grade of 1SG/E-8 on 31 August 1981.
4. A DA Form 4240 (Data for Payment of Retired Army Personnel), dated
1 April 1981, indicates he elected SBP coverage for spouse and dependent children based on the full amount of his retired pay.
5. On 6 December 1996, he and Karan were divorced. The divorce decree required him to designate Karan as the SBP beneficiary.
6. On 31 May 1999, he married Lucille.
7. On 16 January 2014, his former spouse died.
8. On 25 February 2014, he submitted two DD Forms 2656-6 to DFAS. On one he indicated his current coverage is Former Spouse, and he requested a change in coverage based on the death of his former spouse. On the other he requested a change in coverage based on his remarriage and indicated he wishes to resume existing coverage for his new spouse.
9. On 18 March 2014, 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.
10. 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
11. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.
12. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.
13. Title 10, U.S. Code, section 1448 states:
a. A person who is a participant in the SBP 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 persons former spouse when that person became eligible to participate in the Plan, may elect to provide an annuity to that former spouse.
b. Any such election terminates any previous coverage under the SBP.
DISCUSSION AND CONCLUSIONS:
1. The available evidence indicates at the time of his retirement in 1981 the applicant was married to Karan and he elected spouse and dependent children SBP coverage based on the full amount of his retired pay.
2. The available evidence also shows he and Karan were divorced on
6 December 1996. The divorce decree he provides obligated him to change his SBP election to former spouse SBP coverage, which he did. By law, the change in category terminated his previous coverage. Unfortunately, there is no provision of law authorizing a new SBP election or reinstatement of a previous SBP election upon the death of a former spouse beneficiary.
3. 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.
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) AR20140008137
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140008137
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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