IN THE CASE OF:	 

		BOARD DATE:	  13 October 2015

		DOCKET NUMBER:  AR20150001028 


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) election be changed from former spouse, now deceased, to spouse only coverage.

2.  The applicant states his first spouse had SBP coverage as former spouse and he paid SBP premiums for 392 months.  His former spouse passed away on 
8 October 2014 and the SBP was suspended.  On 13 December 2012 he remarried and wants his current spouse to be the SBP beneficiary.  Since the SBP is paid up and he has invested over $13,000 in the SBP, he wants to ensure that his current spouse is provided for by using the program meant to care for surviving spouses.

3.  Denial of his change of his election is unjust because he paid into the SBP for former spouse for 392 months and it is now paid up.  His former spouse is no longer eligible to receive SBP benefits because she is deceased.  He has a current spouse who will be in need of the SBP benefits after he passes away.  

4.  The applicant provides:

* two SBP "Hunt" screens (source unknown)
* marriage certificate, dated 13 December 2012, with current spouse, Shirley 
* death certificate, dated 8 October 2014, for former spouse, Karen
* a letter, dated 16 December 2014, from the Defense Finance and Accounting Service (DFAS) 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 31 March 1978, the applicant elected SBP benefits for spouse only based on the full amount of his retired pay.

3.  On 31 March 1978, he was retired and placed on the Retired List the following day.

4.  On 22 May 2007, he was granted a divorce from Karen.  The divorce decree directed that he grant survivor benefits in the favor of his former spouse.

5.  On 1 March 2008, his former spouse filed a deemed election request to DFAS.

6.  On 23 December 2010, the applicant turned 70 years of age.  The first "Hunt Screen" shows he had paid SBP premiums for 392 months.  His paid up effective date is shown as 1 December 2010.  His payments are shown for former spouse coverage.

7.  On 13 December 2012, he married his current spouse, Shirley.

8.  On 8 October 2014, his former spouse, Karen, passed away.

9.  On 9 December 2014, the applicant submitted two DD Forms 2656-6 (SBP Election Change Certificate).  He was suspending former spouse coverage due to the death of his former spouse.  He was also attempting to elect spouse coverage based on the full amount his retired pay for his current spouse effective the day after the death of his former spouse.

10.  On 16 December 2014, DFAS notified him they were unable to process his request.  The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held.  The law does not permit DFAS to add his current spouse onto his SBP coverage.

11.  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.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

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

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

14.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

15.  The Storm Thurmond National Defense Authorization Act for Fiscal 1999, signed into law as Public Law 105-261 on 17 October 1998, authorized a paid-up provision to the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in SBP for any month after the later of the 360th month of retired pay reduction and the month during which the participant reaches 70 years of age.

16.  Title 10, U. S. Code, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, 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 unless, of the following requirements, whichever are applicable in a particular case are satisfied:

	(A) 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; or

	(B) 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; and

		(ii) certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be able to provide SBP coverage for his current spouse because his former spouse is no longer living and there is no current beneficiary for his paid-up SBP.

2.  The laws regarding a former spouse SBP election provide that once a “former spouse” election has been made, it may not be changed unless the former spouse agrees in writing to such a change or it is changed at the direction of a court of competent jurisdiction.

3.  Once the former spouse SBP election is made, the SBP becomes the property of the former spouse.  It no longer belongs to the service member and control of the SBP does not revert to the service member for election of a new beneficiary.

4.  Since no change was made during the lifetime of his former spouse, the applicant is not entitled to 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)                                         AR20150001028





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ABCMR Record of Proceedings (cont)                                         AR20150001028



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