IN THE CASE OF:
BOARD DATE: 19 May 2015
DOCKET NUMBER: AR20140014150
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 his records be corrected to show he added a new spouse to his Survivor Benefit Plan (SBP) election within one year of their marriage.
2. The applicant states, in effect, that his former spouse, who made a deemed election for coverage and remained listed as the beneficiary for the SBP, died on 18 May 2013. He submitted an application to add his current spouse to his SBP within one year of his former spouse's death.
3. The applicant provides a:
* Marriage License
* Death Certificate
* Final Decree of Divorce
* Property Settlement Agreement
* letter from the Defense Finance and Accounting Service (DFAS)
CONSIDERATION OF EVIDENCE:
1. The applicant's military service records show that he initially enlisted in the Regular Army on 19 May 1956. He subsequently served in the Regular Army and U.S. Army Reserve.
2. His record contains a DD Form 4240 (Data for Retirement Pay) that was signed by the applicant and witnessed on 13 May 1977, prior to his retirement. This form shows in:
* Item 13 (Are You Married) an "X" is in the "YES" block
* Item 15 (Check one of the following to indicate type of coverage desired) an "X" is in spouse only
* item 16 (Full Amount or Reduced Portion of Retired Pay) the full amount is annotated with an "X"
3. He retired on 31 May 1977, after 23 years and 16 days of active service and he was placed on the Retired List in the rank of sergeant major (SGM) on 1 June 1977.
4. The applicant submitted:
a. His Final Decree of Divorce, which shows he and his former spouse were divorced on 31 August 1994. The Decree is silent on the issue of SBP.
b. His Property Settlement Agreement, dated 31 August 1994, which shows in paragraph 6 that he and his former spouse agreed she would receive SBP.
c. His Marriage License, which shows he married his current spouse on
13 September 1996.
d. An Indiana State Department of Health Certificate of Death showing his former spouse died on 18 May 2013.
e. A letter from DFAS, dated 5 December 2013, that states an adjustment was made to the SBP portion of his retired pay account. The adjustment is from former spouse coverage to no beneficiary coverage, effective 18 May 2013.
As a result, his SBP cost was changed to $0.00. The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held; therefore, regrettably, the law does not permit DFAS to add current spouse coverage into the applicant's SBP coverage. He was advised to contact this Board.
5. 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. Elections are made by category, not by name.
6. There is no provision in the laws governing SBP permitting the replacement of one beneficiary with another upon death of the former.
7. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted 1 October 2005 to 30 September 2006. The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that he be permitted to elect coverage for his current spouse under the SBP has been carefully considered.
2. The evidence shows the applicant queried DFAS about SBP enrollment after marriage to his current spouse and received a negative response.
3. By law, enrollment for coverage in this case is not possible except potentially during a Congressionally-approved open enrollment period. There has not been an Open Season since the last one which expired on 30 September 2006. He should read Army Echoes, the Army bulletin published to keep retirees informed of their rights and privileges and to inform them of developments in the Army to learn when the next Open Season may be and if he could elect spouse coverage at that time.
4. In view of the foregoing evidence, he is not entitled to the 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) AR20140014150
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ABCMR Record of Proceedings (cont) AR20140014150
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