IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019074 


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 Survivor Benefit Plan (SBP) coverage be changed from his former spouse, who is now deceased, to his current spouse.

2.  The applicant states:

* his former spouse died on 30 August 2014
* he submitted a request to the Defense Finance and Accounting Service (DFAS) to change his former spouse SBP to cover his current spouse
* he submitted that request based on guidance received from DFAS over the phone
* on 5 October 2014, he was informed by DFAS his request was denied; his September Retiree Account Statement (RAS) was changed to show he did not have SBP coverage
* he believes this denial by DFAS is a gross injustice
* before being removed from the plan, he had paid 281 of 360 months into the SBP program
* he is 73 years old and his current spouse is 79; his request will not represent a significant financial burden on the plan

3.  The applicant provides:

* DD Form 2656-6 (SBP Election Change Certificate)
* certificate of death
* certificate of dissolution of marriage
* certificate of marriage
* letter, dated 26 September 2014, from DFAS address to the applicant

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 4 March 1941.

2.  After graduating from West Point on 5 June 1963, the applicant was appointed as a second lieutenant in the Regular Army.  He served in a variety of positions and attained the rank of colonel (COL).  He retired on 31 July 1990 and was placed on the Retired List effective 1 August 1990.

3.  His records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), completed on 7 June 1990.  In Part III (SBP Election) it shows the applicant opted for SBP coverage for his spouse and dependent children in the reduced amount of $349.  In Part VI (Certification) it shows the applicant's spouse concurred with the applicant's SBP election.

4.  Although his records do not show any change to his SBP election, the applicant provides a certificate of dissolution of marriage showing his divorce was finalized on 4 October 1993.  Additionally, the applicant provides a letter from DFAS which affirms he had former spouse SBP coverage.

5.  A letter from DFAS to the applicant, dated 22 September 2014, stated an adjustment was made to the SBP portion of his retired pay account.  

	a.  The adjustment was from former spouse coverage to no beneficiary coverage, effective 30 August 2014.  As a result, his SBP cost was changed to $0.00.  

	b.  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.  

6.  Additionally, DFAS confirmed the applicant was issued a Former Spouse credit of $1,678.13 on 8 January 2014 [sic, should read 8 October 2014]. 

7.  The applicant provides:

	a.  A marriage certificate confirming the applicant married his current spouse on 3 February 1994.

	b.  A death certificate showing the death of his former spouse on 30 August 2014.

	c.  Letter from DFAS which essentially states:
* this was a response to the applicant's inquiry regarding the election of SBP for his current spouse
* DFAS was unable to process the applicant's request because the laws governing SBP did not permit it
* when former spouse coverage was obtained, it terminated any prior coverage, thus precluding the applicant's current spouse from coverage
* he was informed he could elect spousal coverage during a future period of open season enrollment or submit an application to the Board

8.  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.  Elections are made by category, not by name.  

9.  There is no provision in the law governing SBP which permits the replacement of one beneficiary with another upon death of the former.  Further, Title 10, U.S. Code, Section 1450(f) specifically allows for a change from former spouse to spouse only during the lifetime of the former spouse.  

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  The theoretical underpinning of the USFSPA was that retirement benefits were jointly earned and owned by both the military member and the spouse.  As such, they were divisible, rather than being the exclusive property of the former service member.

11.  Since establishment of the SBP, Congress has approved various periods of time known as Open Season to give retirees an opportunity to enroll in the SBP.  Each Open Season specified the rules and costs for enrollment in the SBP.  All of these open enrollment seasons were extensively publicized in Army Echoes, the Army bulletin provided to all retirees to ensure retirees were informed of their existence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change SBP coverage from his former spouse, who is now deceased, to his current spouse was carefully considered.  However, the SBP entitlement became the property of the applicant's former spouse upon their divorce.  The applicant has no power to control, transfer, or alienate her property interest except in a court proceeding during his former spouse's lifetime.

2.  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.  Any future open enrollment periods will be announced in the 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.

3.  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)                                         AR20140019074





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ABCMR Record of Proceedings (cont)                                         AR20140019074



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