IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013522 


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 his records to show he changed his Survivor Benefit Plan (SBP) election from former spouse to spouse coverage. 

2.  The applicant states he does not remember selecting SBP for former spouse. No one had a copy of the finalized divorce decree or the marriage settlement agreement.  He remarried on 14 July 2014 and discovered the error. 

3.  The applicant provides:

* Final Decree of Divorce, dated 8 September 2003
* Separation and Property Settlement Agreement, dated 30 December 2002, and signed on 20 October 2003
* Marriage certificate (Sallie), dated 14 July 2014
* Military Identification Card and Driver's License (Sallie)
* Social security card (Sallie)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army sergeant first class (SFC) who served on active duty from 23 November 1953 to 31 July 1976.  The applicant and "Inge Dora" were married on 26 November 1957.  

2.  On 9 July 1976, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to "Inge Dora" and they had one child, Brigitte, born in August 1960.  He elected spouse and children SBP coverage based on a reduced amount of $450.00

3.  On 31 July 1976, he retired and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 August 1976. 

4.  On 27 July 1988, he and Inge Dora were divorced.  Their divorce decree stipulates that "Inge Dora" would be paid fifty percent of his disposable retired pay and his SBP.  It also stipulated that the applicant would promptly change the SBP election from spouse to former spouse. 

5.  On 30 June 1995, he wrote a letter to the Defense Finance and Accounting Service (DFAS).  He stated that after receiving his check he was very surprised to see the entry "Retired Pay Payable Only During Life of Payee."  He added "in my divorce (enclosed) the court ordered for my survivor benefit.  Could you please let me know about this?"  With his letter, he submitted a copy of his July 1995 retired pay check and a copy of his divorce decree (from Inge Dora). 

6.  On 10 November 2001, the applicant and Haeng Sim were married and on 8 September 2003, they were divorced.  Their divorce decree incorporated a Property and Settlement Agreement, dated 30 December 2002, but signed on 20 October 2003.  They agreed to waive any interest they had in each other's retirement, savings, investments, and other funds regardless of the type of account. 

7.  On 25 February 2007, he sent an inquiry to DFAS.  He stated that when he retired in 1976, there was no insurable interest election upon signing up for the SBP.  He was interested and had asked to enroll in this but he had not received any answers.  He also stated he had been paying SBP since August 1976, which was over 30 years ago, and that premium payments were made for his former spouse. 

8.  On 28 January 2008, he sent another inquiry to DFAS inquiring about the SBP "paid-up" program.  

9.  On 16 May 2008, by letter, DFAS officials notified the applicant that in accordance with Public Law 105-261 his SBP premiums would be terminated effective 1 October 2008 for all members who were at least 70 years of age and had paid SBP premiums for at least 360 or more months (called paid-up SBP).  As such, his premiums would be terminated effective October 2008; but his annuity coverage would remain in effect at no further cost. 

10.  On 14 July 2014, the applicant and Sallie were married and on 28 July 2014, he submitted a DD Form 2656-6 (SBP Election Certificate Change) to DFAS.  He indicated that his current coverage was "suspended" and he wanted to change his coverage as a result of remarriage. He wanted to resume coverage based on the full amount of retired pay.  He and a witness signed this form. 

11.  On 29 July 2014, DFAS advised him that his current SBP reflected "Inge Dora" as the court-ordered former spouse SBP beneficiary.  A new court order allowing his SBP to be changed from his former spouse to his current spouse would be required. 

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.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

17.  Title 10, U.S. Code, section 1450(b) (Termination of Annuity for Death, Remarriage before Age 55, Etc) states in (1) (General Rule), an annuity payable to the beneficiary terminates effective as of the first day of the month in which eligibility is lost; and (2) (Termination of spouse annuity upon death or remarriage before age 55), an annuity for a surviving spouse or former spouse shall be paid to the surviving spouse or former spouse while the surviving spouse or former spouse is living or, if the surviving spouse or former spouse remarries.

18.  Title 10, U.S. Code, section 1450(f) (Change an Election of Insurable Interest or Former Spouse Beneficiary) states in:

	a.  Sub-paragraph (1) (Authorized Changes), (A) a person who elects to provide an annuity to a person designated by him under section 1448(b) o this title may, subject to paragraph (2), change that election and provide an annuity to his spouse or dependent child; (B) The Secretary concerned shall notify the former spouse or other natural person previously designated under section 1448(b) of this title of any change of election under subparagraph (A); and 
(C) any such change of election is subject to the same rules with respect to execution, revocation, and effectiveness as are set forth in section 1448(a)(5) of this title (without regard to the eligibility of the person making the change of election to make such an election under that section).  Notwithstanding the preceding sentence, a change of election under this subsection to provide an annuity to a spouse instead of a former spouse may (subject to paragraph (2)) be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(B) of this title.

	b.  Sub-paragraph (2) (Limitation on change in beneficiary when former spouse coverage is in effect) a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect under section 1448(b) of this title to provide an annuity to a former spouse (or to both a former spouse and child), or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election under paragraph (1) unless, of the following requirements, whichever are applicable in a particular case are satisfied: 

		(1)  In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person— (i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and (ii) certifies to the Secretary concerned that the court order is valid and in effect. 

		(2)  In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person (i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election under paragraph (1); and (ii) certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in connection with his retirement in 1976 the applicant elected SBP coverage for spouse and children.  The applicant and his former spouse "Inge Dora" were divorced in July 1988.  Their divorce decree stipulated that he would effect a change in his SBP category from "spouse" to "former spouse" coverage.  It appears he submitted a request to effect this change or his former spouse "Inge Dora" made a request for a deemed SBP election in compliance with the terms of the divorce decree.  

2.  Although premiums were paid up in October 2008 and he is no longer paying for the cost of the SBP annuity, his SBP category remained the same "former spouse" coverage.  His former spouse remains eligible for the annuity, in the event he dies. 

3.  It is the Federal statute which controls the dynamics of the SBP.  If the applicant desires to change his SBP coverage to spouse coverage, in accordance with Title 10, U.S. Code, section 14509(1) and (2), he must obtain an order modifying the previous order which permits the removal of his former spouse and election of his current spouse.  If the applicant was able to obtain such a modifying order, he is advised that DFAS would be able to make the change, upon presentation of the appropriate supporting documentary evidence, without intervention by this Board.  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)                                         AR20140013522



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ABCMR Record of Proceedings (cont)                                         AR20140013522



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