IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140008892 


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, in effect, correction of the records of his late wife, a former service member (FSM), to show he is the eligible for a Survivor Benefits Plan (SBP) annuity.  

2.  The applicant states at the time of his late wife's retirement, she had named him as the former spouse beneficiary for SBP.  She moved in with him in March or April and they lived together until her death on 15 May 2013.  Neither of them was aware of the requirement to notify the Defense Finance and Accounting Service (DFAS) of their remarriage as he was already named as the SBP beneficiary.  Sometime in June, he received a letter stating he was eligible for the SBP annuity since he was named the annuity beneficiary.  He lost this letter.  There were no changes in the beneficiary and annuity amount.  His wife had been in very poor health the past years from diabetes and kidney failure and she was on dialysis.  The decision to deny him a change from former spouse to spouse should be revised.

3.  The applicant provides copies of the following:

* FSM's:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* death certificate

* their divorce decree
* their 2002 marriage certificate
* his letter from DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 19 January 1940.  She and the applicant were initially married on 30 March 1962.

2.  The FSM enlisted in the Regular Army on 8 August 1979, with prior U.S. Navy enlisted service.  

3.  The applicant provided a copy of a Final Judgment of Dissolution of Marriage which shows he and the FSM were divorced on 6 October 1980.  The judgment did not stipulate any award of the SBP.

4.  On 12 January 1998, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein she indicated she was not married and elected "former spouse" SBP coverage for the applicant.  

5.  The FSM retired on 31 January 1998. 

6.  The applicant also provided a copy of a marriage certificate which shows he and the FSM were remarried on 5 September 2002.  

7.  The FSM died on 15 May 2013 and she was 73 years of age.  Her death certificate lists the applicant as her spouse and informant.

8.  The applicant further provided a letter, dated 30 April 2014, wherein the Annuity Pay Operations Section, DFAS, in response to his request for an annuity, advised him of the following:

	a.  Upon retirement the FSM elected to cover her former spouse under the SBP and named him as the beneficiary.  On 6 March 2002, after 4 years of retirement, the FSM sought to withdraw from the "former spouse" category of coverage.  A former spouse election under Title 10, U.S. Code (USC), section 1448(b)(2) is irrevocable except as provided for under Title 10, USC, section 1450(f)(1) which allows a change of election in favor of a new spouse or a child.  Title 10, USC, section 1448 and Department of Defense Instruction 1332.42 states "all elections are irrevocable unless otherwise provided by law" and that a member who has "voluntarily elected former spouse coverage may change the election to cover a spouse at any time after the person acquires the spouse."

	b.  At the time the FSM sought to withdraw from former spouse: coverage she was not married.  Therefore, her request to withdraw from coverage could not be honored and he was continued in the "former spouse" category of coverage until her death.  She died on 15 May 2013.  On 2 August 2013, they received his application for the annuity and at that time they discovered that he and the FSM had remarried on 5 September 2002. 

	c.  If a member who had elected former spouse coverage subsequently married, subject to certain limitations, she/he could change the former spouse election to provide an annuity on the new spouse in accordance with Title 10, USC, section 1450(f).  The FSM had the option to change her election from former spouse to spouse coverage at any time after their remarriage.  However, there is no record the FSM sought to change her coverage from "former spouse" coverage to "spouse" coverage after remarriage.  Moreover, once the FSM remarried she ceased to have a former spouse beneficiary under the SBP.  Accordingly, his request for annuity must be denied.

	d.  If he believed that an error or injustice existed in the FSM's military record which currently showed that she did not change her coverage from "former spouse" to "spouse" after their remarriage, he could address those concerns to the Army Review Boards Agency.  

9.  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.  Since its creation, it has been subjected to a number of substantial legislative changes.

10.  Title 10, USC, section 1450(a)(1), states effective as of the first day after the death of a person to whom section 1448 of this title applies (or on such other day as that person may provide under subsection (j)), a monthly annuity under section 1451 of this title shall be paid to the person’s beneficiaries under the Plan, to the eligible surviving spouse or the eligible former spouse. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant first married on 3 March 1962.  They were divorced on 6 October 1980.  On 12 January 1998, she had completed a DD Form 2656 and indicated she was not married and elected "former spouse" SBP coverage for the applicant.  She retired on 31 January 1998.

2.  On 6 March 2002, the FSM sought to withdraw from the "former spouse" category of coverage.  As she was not married at the time, her request to withdraw from coverage could not be honored and he was continued in the "former spouse" category of coverage until her death.  
3.  The FSM and the applicant were remarried on 5 September 2002.  She died on 15 May 2013.  

4.  On 30 April 2014, DFAS advised the applicant that there was no record the FSM sought to change her coverage from "former spouse" coverage to "spouse" coverage after remarriage.  Therefore, once the FSM remarried she ceased to have a former spouse beneficiary under the SBP.  DFAS denied his request for an SBP annuity.

5.  Notwithstanding the fact that neither the FSM nor the applicant notified DFAS at any time after they remarried which would have made the applicant the eligible "spouse" instead of "former spouse," in accordance with Department of Defense Instruction 1332.42 a member who has "voluntarily elected former spouse coverage may change the election to cover a spouse at any time after the person acquires the spouse."

6.  Title 10, USC, section 1450(a)(1), states a monthly SBP annuity shall be paid to the eligible surviving spouse or the eligible former spouse.  In view of the FSM's continued payment of "former spouse" coverage until her death, no other vested individual, and the applicant being the "former and current spouse," as a matter of equity in this case the records should be corrected to show the FSM submitted a timely request to DFAS to change the applicant from "former spouse" to "spouse" for an SBP annuity.

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 the FSM timely submitted a request to DFAS changing the applicant from "former spouse" to "spouse" on 6 September 2002 and it was processed in a timely manner.



      _______ _   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)                                         AR20140008892



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ABCMR Record of Proceedings (cont)                                         AR20140008892



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