IN THE CASE OF:	

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140016991 


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

2.  The applicant states:

* he needs SBP coverage for his current spouse
* his ex-spouse died on 8 August 2014 and she was his SBP beneficiary

3.  The applicant provides:

* ex-spouse's death certificate
* letter from the Defense Finance and Accounting Service (DFAS), dated 11 September 2014
* spouse's identification card 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 September 1952.  He enlisted in the U.S. Army Reserve (USAR) on 29 May 1975 under the (Delayed Entry Program) for 
6 years.  He was discharged from the DEP for enlistment in the Regular Army (RA).  He enlisted in the RA on 15 July 1975 for 3 years.  



2.  He married L___ on 20 September 1975.

3.  He was released from active duty on 14 July 1978 and transferred to the USAR.  

4.  He and L___ divorced on 23 February 1993.

5.  A DD Form 1883 (SBP Election Certificate), dated 13 October 1995, shows:

* he declined to make an SBP election
* he was not married
* he did not have any dependent children

6.  He was assigned to the Retired Reserve effective 13 October 1995.

7.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 31 October 2011, shows he elected former-spouse coverage based on full gross retirement pay.

8.  He was placed on the retired list in the rank of master sergeant effective 
12 September 2012.

9.  He married D___ on 2 August 2014.

10.  His former spouse, L___, died on 8 August 2014.

11.  He provided a letter from DFAS, Retired and Annuitant Pay, dated 
11 September 2014, that states DFAS was unable to process his request regarding the election of SBP coverage for his current spouse because the laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held.  Therefore, the law does not permit DFAS to add the applicant's current spouse to his SBP coverage.  He was also advised that he may have the option to elect for spouse coverage during a future open season enrollment.

12.  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.



13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

14.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

15.  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.

16.  Effective 8 January 2014, the DFAS Office of General Counsel clarified the laws regarding the change of SBP coverage from former spouse to spouse upon the death of the former spouse.

   a.  Any retiree that is married and elects spouse coverage at retirement, then divorces that spouse and elects former spouse coverage for the former spouse, cannot elect to cover his/her current spouse upon the former spouse's death.  It does not matter whether or not the former spouse SBP coverage was court-ordered.  Once the former spouse dies, the retiree cannot add his/her new spouse to the SBP.  In this situation, the only circumstance under which a retiree can change his/her SBP coverage from former spouse to spouse is if the change is made while the former spouse is alive.

   b.  Any retiree who has both a spouse and former spouse at retirement, who elects former spouse SBP coverage pursuant to a court order, is eligible to change his/her SBP coverage to spouse upon the former spouse's death.  This is because the retiree's actual spouse was an eligible beneficiary at retirement, but the retiree was required by a court order to establish former spouse coverage.  However, if the retiree made a voluntary election for former spouse coverage at retirement, while he/she also had a current spouse, then SBP coverage cannot be changed to spouse upon the former spouse's death. 






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show SBP with spouse coverage because he had SBP with former spouse coverage, his former spouse died, he timely notified DFAS of her death, and he requested that his SBP be changed to spouse coverage.

2.  Records show the applicant was placed on the retired list effective 
12 September 2012.  Prior to his retirement, he elected SBP with former spouse coverage.

3.  The applicant married D___ on 2 August 2014.  

4.  His former spouse (L___) died on 8 August 2014.

5.  Any retiree who is married and elects spouse coverage at retirement, then divorces that spouse and elects former spouse coverage for the former spouse, cannot elect to cover his current spouse upon the former spouse's death.  It does not matter whether or not the former spouse SBP coverage was court-ordered.  Once the former spouse dies, the retiree cannot add his new spouse to the SBP.

6.  A DFAS official notified the applicant that DFAS was unable to process his request regarding the election of SBP coverage for his current spouse because the laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held.  Thus, the law does not permit DFAS to add the applicant's current spouse to his SBP coverage.

7.  Therefore, in view of the foregoing, the applicant 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)                                         AR20140016991





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ABCMR Record of Proceedings (cont)                                         AR20140016991



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