IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150001544 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, the widow of a deceased former service member (FSM), requests correction of her late husband's records to reflect her entitlement to spouse coverage under the Survivor Benefit Plan (SBP). 2. The applicant states: * she and her late husband were married, divorced, and remarried prior to his death * her ineligibility for SBP spouse coverage emanates from an administrative error * her late husband intended for her to receive the benefit and his records should be corrected to reflect her eligibility * her late husband was a devoted Soldier for 13 years of which they were a couple for 7 years and married for 5 years * in the last year of her late husband's life, he worked diligently to ensure that she and their three small children would be provided for after his death * in his last months he took great comfort in believing everything was in order * his health deteriorated very rapidly and he overlooked making the election to change his SBP in all of the confusion * she and her children cannot afford to do without this benefit * she humbly asks the Board to overturn the denial of benefits determination 3. The applicant provides: * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) * death certificate * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Defense Finance and Accounting Service (DFAS) letter to the applicant, dated 16 December 2014 * marriage certificate * divorce decree CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 7 March 2000. 2. On 30 May 2012, the applicant and the FSM divorced per the Chancery Court for the 19th Judicial District in the State of Tennessee, Montgomery County Final Decree of Absolute Divorce. 3. The FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 9 July 2013, reflects his marital status as single and that he elected coverage for his former spouse and dependent children of that marriage based on full gross pay. 4. On 30 July 2013, the FSM retired due to permanent disability. His DD Form 214 shows he was credited with 13 years, 4 months, and 24 days of active service. 5. The FSM's State of Tennessee marriage certificate shows he and the applicant remarried on 13 February 2014. 6. The FSM's Tennessee Department of Health Certificate of Death shows he died of carcinoma on 18 June 2014. 7. A DFAS letter to the applicant, dated 26 July 2014, advised her that her SBP annuity claim was denied because her deceased husband had elected former spouse SBP coverage at retirement. The applicant responded to the DFAS letter, informing DFAS that she was both the former spouse and the current spouse due to divorce and subsequent remarriage to the FSM. 8. A second letter from DFAS to the applicant, dated 16 December 2014, reiterated her ineligibility for the SBP annuity from the military retired account of her deceased husband. DFAS determined she was not entitled to the annuity under spouse coverage, as her deceased husband had elected former spouse coverage on 31 July 2013 and failed to inform DFAS of their remarriage within 1 year of the remarriage – at which point her coverage as his spouse would have been effective on the 1-year anniversary of their remarriage date. 9. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members serving on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. It declared a 12-month open enrollment season for those members who retired prior to enactment of the law. Beneficiary elections are made by category, not by name. An election, once made, is irrevocable except in certain circumstances. 10. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that State courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. 11. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree, upon remarriage, to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to the first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 12. 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 one 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. 13. Title 10, U.S. Code, section 1450(f)(1)(2), states a member who has elected former spouse coverage under Title 10, U.S. Code, section 1448(b), who subsequently marries may change the former spouse election to provide an annuity to the new spouse subject to certain limitations. 14. Department of Defense General Counsel Opinion 97-2 determined that when a member who has elected former spouse coverage at retirement subsequently marries his former spouse, the member no longer had a former spouse beneficiary under the SBP. Consequently, the provisions of Title 10, U.S. Code, section 1450(f), are not applicable in that scenario. Since the new spouse was already covered as the member's SBP beneficiary prior to their remarriage, the 1-year marriage requirement prior to coverage eligibility is not applicable. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of her late husband's records to reflect her entitlement to spouse coverage under the SBP was carefully considered. 2. The evidence of record shows the applicant and the FSM were divorced on 30 May 2012. Prior to retirement, the FSM elected SBP coverage for his former spouse and dependent children on 9 July 2013. 3. The applicant and the FSM remarried on 13 February 2014; however, the FSM failed to notify DFAS of the change to his marital status within 1 year of his remarriage to the applicant and prior to his death on 18 June 2014 in order to correct the SBP category from former spouse to spouse. 4. Department of Defense General Counsel Opinion 97-2 determined that when a service member and former spouse (who was already covered under SBP as the former spouse) remarry, the 1-year marriage requirement prior to coverage eligibility is not applicable since the new spouse was already covered as the member's SBP beneficiary prior to their remarriage. However, crucial to that case was the service member's election of spouse coverage subsequent to the couple's remarriage. 5. In this case it is clear that the FSM intended to provide SBP coverage to the applicant and that denial of an annuity is a grave injustice. Correcting the FSM's record to show he requested a change from former spouse and children coverage to spouse and children coverage shortly after their remarriage will bring the facts of this case in line with Department of Defense General Counsel Opinion 97-2. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 FSM elected spouse and dependent children coverage on 1 March 2014, well within 1 year of his second marriage to the applicant and prior to his death * showing this election was timely received and processed * paying the applicant the SBP annuity minus any associated costs ___________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) AR20150001544 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001544 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1