IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140009159 


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 her records to show she elected Survivor Benefit Plan (SBP) coverage for "spouse and child(ren)."

2.  The applicant states:

* when she retired in 1989, she elected SBP coverage for child only 
* she is willing to pay the premiums from the date of separation until the date of her divorce 
* she communicated with the Defense Finance and Accounting Service (DFAS) but she was told spouse coverage is excluded 

3.  The applicant provides:

* Letter from DFAS, dated 15 January 2014 
* DD Form 2656 (Date for Payment of Retired Personnel), dated 13 May 2014
* Divorce decree, dated 21 November 1991
* DD Form 2656-6 (SBP Election Change Certificate), dated 14 May 2014
* Certificate of marriage, dated 1 June 2012

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 7 October 1986 and she held military occupational specialty 71L (Administrative Specialist).  Her enlistment contract shows she was married to Lester at the time of her enlistment. 

2.  On 23 February 1989, a physical evaluation board (PEB) considered her conditions and found her physically unfit.  The PEB rated her at 80 percent and recommended her for permanent retirement.

3.  On 27 April 1989, she completed a DA Form 4240 (Data for Payment of Retired Personnel).  She indicated she was married but she did not list the name, social security number, or the date of birth of her spouse.  She also indicated she had a dependent child and she elected SBP coverage for "dependent children only."  Part VII (SBP Certificates) (Required when married member does not elect full coverage or declines coverage for spouse) is not signed by her spouse and does not indicate the spouse was informed of her election by separate letter. 

4.  She retired on 31 March 1989 and she was placed on the Retired List in her retired pay grade of E-3 on 1 April 1989.

5.  On 21 November 1991, she and her spouse Lester were divorced.  Their divorce decree states they were married on 18 July 1981 and they were separated on 17 November 1985.  They had one dependent child born in February 1981.  Their divorce decree is silent with respect to the SBP. 

6.  On 1 June 2012, she married Tara Yvette.  However, there is no indication in her personnel or pay records that shows she notified DFAS of her divorce and remarriage or attempted to change her SBP election to spouse coverage within one year of her marriage. 

7.  On 15 January 2014, DFAS wrote back to the applicant in response to her December 2013 SBP request.  DFAS indicated that her original election, dated 5 May 1989, was for child SBP coverage.  Her pay account currently shows she has no eligible beneficiary and spouse coverage is excluded.  In order for DFAS to add her new spouse to her SBP coverage, they would need proof that she was not married at the time of retirement. 

8.  She provides: 

	a.  A DD Form 2656-6, dated 13 May 2014, indicating that her current coverage is "former spouse and children" and she is requesting a change in coverage based on remarriage.  She did not list the requested change to coverage; but, she based it in the full amount and listed her spouse as Tara.

	b.  A DD Form 2656, also dated 13 May 2014, wherein she indicated she was married to Lester as of 8 July 1981 and she marked the box indicating "spouse and children" coverage based on the full amount.  She and awitness signed this form on 13 May 2013.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.

11.  Title 10, U.S. Code, section 1448(a)(5) (participation by person marrying after retirement, etc.).

	a.  (A)  Election to participate in plan.—  A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.

	b.  (B)  Manner and time of election.—  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

	c.  (C)  Limitation on revocation of election.—  Such an election may not be revoked except in accordance with subsection (b)(3).

	d.  (D)  Effective date of election.—  The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

12.  Assistant Secretary of Defense memorandum, dated 5 September 2013, Subject: Extending SBP Coverage to Same-Sex Spouses of Military Members and Retirees, stated with the U.S. Supreme Court decision on 26 June 2013 declaring section 3 of the Defense of Marriage Act (DOMA) of 1996 unconstitutional, the Federal Government now recognizes same-sex marriages which are legally performed under state law.  On 5 September 2013, DOD issued implementing guidance extending SBP coverage to same-sex spouses of military members and retirees. 
	a.  Any claims to SBP spouse coverage for same-sex spouses of eligible participants of the SBP for periods before 26 June 2013, are not valid as the Defense of Marriage Act was still the law and in effect prior to 26 June 2013.  As a result, no SBP premiums for such coverage will be charged prior to that date.  Further, no SBP annuity payments for such coverage will be paid for deaths occurring before that date.

	b.  Effective from 26 June 2013, a person who becomes eligible to participate under 10 USC 1448 (a)(1) and is married to a same-sex partner shall have the SBP program applied as for any other married couple under section 10 USC 1448, including the requirements for spousal consent for less than full annuity coverage of the spouse.

	c.  A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to 26 June 2013, and who had married that same-sex partner before 26 June 2013, shall have one year from 26 June 2013, to make a spouse election under 10 USC 1448(a)(3).  Such person may not participate at less than maximum coverage described in 10 USC 1448(a)(3) without the concurrence of the person’s spouse unless they already had provided an annuity for a dependent child.  If an election is not received on or before 25 June 2014, full spousal coverage shall be entered and the member shall be responsible for payment of premiums effective from 26 June 2013.

	d.  A person who is married to a same-sex partner on 26 June 2013 and has insurable interest coverage under the SBP may terminate the insurable interest coverage and elect spouse coverage.  This election must be received on or before 25 June 2014. 

	e.  A person who was not married upon becoming eligible to participate in the plan, but who married a same-sex partner before 26 June 2013, shall have one year from 26 June 2013, to make a spouse election under 10 USC 1448(a)(5).  The election must be received on or before 25 June 2014 or the person shall be prohibited by law from making such election.

	f.  Generally, a person who is a participant in the plan and is providing coverage under the SBP for a spouse, who later does not have an eligible spouse beneficiary may, under 10 USC 1448(a)(6), elect not to provide coverage for a new spouse in the event of a remarriage.

	g.  For a person who enters into a same-sex marriage after 26 June 2013, the election to discontinue participation under 10 USC 1448(a)(6) must be made within one year of the remarriage.  If a member does not discontinue participation, then pursuant to 10 USC 1448(a)(6), spouse coverage will resume effective on the first anniversary of the marriage. 

	h.  If the remarriage took place prior to 26 June 2013, the participant has one year from 26 June 2013 to elect out of SBP.  If a member does not make such an election within one year of 26 June 2013, then pursuant to section 10 USC 1448(a)(6), spouse coverage will resume effective no earlier than 25 June 2014.

	i.  Additionally, any such person falling within the parameters of 10 USC 1448(g), shall have one year from 26 June 2013 or the date of any marriage subsequent to that date, to elect to increase the level of coverage under 10 USC 1448(g).

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 4 May 1989 by reason of disability.  At the time of her retirement, she was still married to Lester, albeit legally separated.  She completed a DA Form 4240 and elected SBP coverage for children only.  She did not list the name of her spouse or his social security number and/or his date of birth. 

2.  Effective 1 March 1986, the law required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  The written concurrence at the time would have been the signature of the spouse on the DA Form 4240 or an entry on the form by an official indicating if and when the spouse was informed by letter.  Neither action occurred. 

3.  Because her spouse was neither notified of nor concurred with her election, the child SBP election she made on 27 April 1989 to be effective on 5 May 1989 is invalid and her SBP coverage should have automatically defaulted to "spouse and children" coverage.

4.  She was divorced on 21 November 1991.  At that time, premiums for the "defaulted" "spouse" portion of the SBP should have also been suspended; but, the coverage would have remained.  Additionally, her dependent child was born in February 1981 and would have turned 21 year of age in February 2002.  The child would have aged off and premiums would have also been suspended when he turned 21 (presuming he was not incapable of supporting himself).  

5.  When the applicant remarried on 10 June 2012, "spouse" coverage was still in effect and the premiums should have been re-started.  However, it appears the applicant entered into a same-sex marriage; therefore, premiums should not have started prior to 26 June 2013.
6.  It appears the absence of the spouse notification and acknowledgement in May 1989 has led to a series of errors.  She should not be penalized.  Her records should be corrected to show she elected "spouse and children" SBP coverage when she retired, effective 5 May 1989.  She should also be responsible for payment of all premiums retroactive to May 1989 as a result of this correction.

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 applicant made a "spouse and child(ren)" SBP election on 27 April 1989 (to be effective 5 May 1989) 
* showing her election/request was received and processed by the appropriate office in a timely manner and charging her premiums at the "spouse and child(ren) rate effective 5 May 1989
* showing her divorce decree was timely received on 21 November 1991 and "spouse" SBP premiums were suspended on that date
* showing she re-married on 1 June 2012 but "spouse" SBP premiums were restarted on 26 June 2013 (the beginning date of same-sex eligibility for SBP)



      __________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)                                         AR20140009159



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ABCMR Record of Proceedings (cont)                                         AR20140009159



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