BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140012611 


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, the records of her deceased husband, a former service member (FSM), be corrected to show he elected not to resume Survivor Benefit Plan (SBP) coverage for his spouse upon his remarriage.

2.  The applicant states:

* the FSM died on 1 February 2013; he had paid into the SBP for his mentally handicapped son for 30 years
* before his death, he appointed his daughter Victoria as his surrogate (a person in charge of probate, inheritance, and guardianship)
* the handicapped son began receiving monthly annuity payments in August 2013 but those payments suddenly stopped in November 2013
* when payments stopped, officials at the Defense Finance and Accounting Service (DFAS) demanded repayment without any explanation; the surrogate contacted DFAS via phone and email to no avail
* it was very important to her husband, the FSM, that his mentally challenged son receives the SBP annuity 
* she, Johanna, the applicant and the FSM's surviving spouse and widow, already receives an SBP annuity from another marriage and she wants the money to go to the mentally challenged son
* DFAS ruled that the annuity would be paid to the surviving spouse because the FSM never updated the record within 1 year of his remarriage to her
* when he divorced his first wife, he changed the SBP coverage to child only; but the beneficiary was not updated when he married her
* the FSM's son is unable to hold a job or control finances due to a mental handicap incurred at a very young age

3.  The applicant provides:

* FSM's marriage license to Johanna
* FSM's Retiree Account Statement, February 2012
* DD Form 2828 (Physician Certificate for Child Annuitant)
* Letter from Johanna and Victoria to DFAS
* Amended Judgment of Possession, filed on 22 August 2013
* Judgment of Interdiction, dated 5 January 1990
* Order for the Preparation of a Detailed Descriptive List and to Appoint Expert, dated 11 April 1989
* Letters of Guardianship, dated 20 February 1990
* Petition in Suit for Interdiction, dated 3 April 1990
* Motion and Order to Appoint Attorney at Law to Represent the Defendant, dated 5 June 1989
* Direct Deposit Form
* Representative payee Application
* FSM's Certificate of Death
* Congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born in December 1929.  He and Eleanor were married on an unknown date.  At the time he retired, they had a dependent child, Noel D. born in December 1958. 

3.  With prior service in the Army National Guard and on active duty, he enlisted in the Regular Army on 26 June 1962.  He served through multiple reenlistments in a variety of stateside or overseas assignments, and he was promoted to sergeant major (SGM)/E-9.  

4.  On 6 November 1974 and again on 3 February 1975, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  In each case, he 

* indicated he was married to Eleanor and they had a dependent child, Noel
* elected spouse and children SBP coverage based on the full amount
* authenticated (and a witness also authenticated) each form with his signature 

5.  He retired on 28 February 1975 and he was placed on the Retired List in his retired rank/grade of SGM/E-9 on 1 March 1975. 

6.  It is unclear when he and Eleanor were divorced.  Their divorce decree is not available and it is unknown what stipulations were made in that decree (i.e., whether it required him to change his election to former spouse). 

7.  On 14 August 1992, he and Johanna, the applicant, were married.  

8.  On 1 February 2013, the FSM died.  His death certificate shows he was married to Johanna, the applicant, at the time of death. 

9.  It appears shortly after his death DFAS received an application from the FSM's disabled child and established an annuity for him in or around August 2013.  However, upon further research, DFAS discovered the FSM had remarried in 1992 which made his spouse (widow) eligible to receive the SBP annuity before the disabled child.  As a result, the child SBP annuity was terminated and a debt of the paid amounts was established. 

10.  On 13 May 2014, the 30th Judicial District Court, LA issued an Amended Judgment of Possession ordering the following: 

* applicant (Johanna) be recognized as owner of certain property and/or motor vehicles and co-owner of certain property 
* the disabled son (Noel) be recognized as a forced heir under state law and shall be awarded his forced portion in the form of SBP from the Army for the FSM

11.  The applicant provides: 

	a.  Petition in Suit for Interdiction (and allied documents), filed in February 1989, wherein the FSM petitioned the Court to be appointed as his disabled son's curator, and Victoria, the FSM's daughter, be appointed as under curator.  

	b.  Judgment of Interdiction, dated 5 January 1990, in which the Court determined that the FSM's son, Noel, is incapable of supporting himself because of mental capacity that existed before his 18th birthday.  Victoria, the FSM's daughter is appointed under curator of the interdict.  

	c.  DD Form 2828, dated 2 July 2013, signed by a physician, certifying that the FSM's son, Noel, is permanently incapacitated due to traumatic brain damage since the summer of 1961. 

	d.  A letter, dated 3 March 2014, from the applicant to DFAS, wherein she states that she is currently a recipient of an SBP annuity from her previous (now deceased) husband.  It is her understanding she can only claim one SBP annuity.  Her husband, the FSM, intended for his SBP annuity to go to his disabled son, Noel.  She does not want to receive the annuity and she wants it given to the disabled son.    

12.  According to the FSM's DFAS pay record, he reached age 70 and paid up the maximum SBP premiums on 1 October 2008.  SBP coverage remained for spouse, but no SBP premiums were further deducted from his retired pay account.

13.  In a letter, dated 13 November 2014, the FSM's daughter, Victoria, states that the disabled son has an income consisting of social security disability and food stamps.  He receives $625.90 from the Social Security Administration with the amount of $104.90 withheld for Medicare and the amount of $94.00 withheld for food stamps.  

14.  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.  

15.  Public Law 99-145, enacted on 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to the first anniversary of remarriage).  Changes 

must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the anniversary of the marriage, with costs owed from that date. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 1 March 1975.  He was married to Eleanor at the time and they had a dependent, handicapped son, Noel.  The FSM elected spouse and child SBP coverage based on the full amount.  After retirement, he and Eleanor were divorced.  Their divorce decree is not available for review.  It appears the spouse and child SBP coverage remained in effect but the spouse portion of the SBP premiums was suspended.  The child became the eligible annuitant in case of the FSM's death.  

2.  The FSM and Johanna, the applicant, married on 14 August 1992.  It appears the FSM did not notify DFAS of his remarriage and he continued to pay SBP premiums at the child rate until his premiums were paid up in October 2008.  

3.  Naturally, with no record of his remarriage at DFAS, when the FSM died and DFAS received an application from the FSM's disabled child, an annuity was established for the child beginning in August 2013.  However, upon further research, DFAS determined the FSM had remarried.  This means the spouse was eligible to receive the annuity over the disabled child.  As a result, DFAS terminated the child annuity and requested recoupment of the paid amounts (now considered a debt).  DFAS also sent the required paperwork to the spouse (widow) to claim her annuity.  There is neither a statutory nor a regulatory error in the FSM's records,

4.  However, the FSM's widow and applicant wrote to DFAS in March 2014 indicating that she is already a recipient of one SBP annuity from a prior marriage and she desires to fulfill his deceased husband's (FSM) intentions in that his SBP annuity be paid to his disabled son.  

5.  Therefore, as a matter of equity only, the FSM's records should be corrected to show the FSM contacted DFAS officials upon his marriage to Johanna and informed DFAS that he did not wish to cover Johanna, a post-retirement spouse. This would in effect remove the spouse category from his election and his child would be entitled to an SBP annuity, provided he meets all other requirements.


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 elected not to resume "spouse" SBP coverage on 15 August 1992 and his spouse Johanna concurred with his decision
* showing the FSM provided the necessary and appropriate documents certifying the child's incapacitation before his 18th birthday
* showing DFAS timely received, accepted, and processed his election 
* paying to the disabled son, Noel, the SBP annuity based on the death of his father, retroactive to February 2013



      _______ 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)                                         AR20140012611





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ABCMR Record of Proceedings (cont)                                         AR20140012611



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