Retired Air Force Lt. Col. Harold Brown, one of World War II's famed Tuskegee Airmen, survived being shot down over Austria near the end of the war.

He also survived the following weeks as a prisoner of war, including time at the notorious Moosburg POW camp.

Shortly after the war, as a flight instructor, he survived a midair crash.

"All this before I was 21," said Brown, now 90, who retired from the Air Force a half-century ago and from his second career as an educator about 29 years ago.

Much later in life, he also survived his ex-wife. And because he did, he finds himself in yet another battle — this time with the Defense Finance and Accounting Service.

After his former wife died from cancer in 2013, he asked DFAS to transfer his military Survivor Benefit Plan benefits to his current wife, whom he married in 2010.

But although Brown has paid tens of thousands of dollars in premiums for those benefits, DFAS refused.

He — and an unknown number of other retirees — have discovered that in 2013 DFAS, with no public notice, changed the way it interprets the law governing SBP.

For decades, DFAS had allowed the transfer of SBP benefits to a new spouse if a former spouse died before the retiree.

But with the change in 2013, retirees is no longer are automatically allowed to do that. transfer that SBP designation to their current spouse after the former spouse's death. There are ways to make it happen, but such transfers must be made before the former spouse's death if the original designation was made as part of a court order or a written agreement.

Brown cannot say precisely how much he has paid in SBP premiums overall. Information was not available to make more precise estimates of Brown's total payments for SBP premiums. But he knows that each month, for 36 years, he paid 6.5 percent of his retirement check for the benefit. (In 2008, the law was changed so that retirees 70 and older who have paid premiums for at least 30 years are considered fully paid up and no longer have to pay premiums.)

At Brown's death, the basic SBP would have made a monthly annuity payment to his designated beneficiary equal to 55 percent of his monthly retirement pay.

The premiums Brown paid over the years will stay in the broad Defense Department trust fund that pays retirees and annuitants, to include SBP beneficiaries, said DFAS spokesman Steve Burghardt. The SBP program is partially funded by the government, which underwrites at least 40 percent of the costs.

Brown noted that the DFAS website states that SBP is a form of insurance for part of retired pay. "They're selling this as insurance, but it's not," he said. "Or it is — with technicalities."

Brown is not the only one in this situation. The Military Officers Association of America has heard from other retirees over the last two years since DFAS altered its interpretation of the law, and has contacted DFAS and defense personnel officials about the issue, said Phil Odom, the group's deputy director of government relations.

"This verbal legal interpretation means that a military retiree cannot transfer SBP coverage to a current or future spouse as has been the policy in the past," wrote retired Navy Vice Adm. Norbert Ryan, MOAA's president, in a letter last September to Jessica Wright, then-undersecretary of defense for personnel and readiness.

Moreover, Ryan noted, the DFAS change has created a stark inconsistency in that It also creates an inconsistency in benefits, because retired federal employees who have purchased Office of Personnel Management-sponsored survivor benefits are authorized to make such transfers after the death of an ex-spouse.

The Defense Department's SBP experts have been reviewing these situations and associated SBP policies, but no decisions have been made, said Defense Department spokesman Lt. Cmdr. Nate Christensen.

DFAS officials have recommended that if service officials want to take a different approach in situations like Brown's, they should seek formal legislation from Congress. According to DFAS, its general counsel actually has drafted potential legislation, and has provided a copy to DoD personnel and readiness officials.

The DFAS interpretation "seems harsh," said David Snell, director of the federal benefits services department at the National Active and Retired Federal Employees Association. "Events in life happen. I can't imagine the rationale behind not allowing a service member to elect coverage for a current spouse in the event something happens to the former spouse" before the member dies.

Brown said he had no issues with naming his first wife as his SBP beneficiary when they divorced in 1991.

"It seemed to me the only honorable thing to do," he said. "I would have done it even if it hadn't been for the court order. She was the mother of my two children, and with all she went through, especially with a child being born with health problems, who died at age 17 … how was I to know cancer would catch up with her and she would die before me?"

But now, he said, "I want to name my new spouse" as SBP beneficiary.

Retired Air Force Lt. Col. Harold Brown and his wife, Marsha Bordner, are seen at last summer's MLB All Star Game, where he was honored.

Photo Credit: Brown family

DFAS does not discuss the details of individual cases, said spokesman Steve Burghardt. But generally, he said, in a scenario in which the service member selects spouse SBP coverage at the time he or she becomes eligible to participate, the couple divorces, and former spouse coverage is selected, then all previous coverage under the plan ends.

"In that instance, if the former spouse dies, then SBP coverage has terminated" and coverage for a subsequent spouse cannot be elected, Burghardt said.

It is unclear what case or cases precipitated the change. But only three such cases were referred for legal review before May 2013, and in just one of those cases did the the legal advice support the previous, more lenient interpretation.

As of March 4, a total of 1,141 retirees had benefited from that previous interpretation, according to DFAS data.

DFAS has determined that the new, more stringent rules will not apply retroactively to retirees and their current spouses who were able to transfer beneficiary designations before DFAS changed its interpretation

Because there has been no published legal opinion or any DFAS publication announcing the change, MOAA is concerned that retirees are unaware of the changes and may not be able to take steps to address their own situations. Most retirees are apparently unaware that they will be unable wouldn't be able to transfer the benefit if their former spouse dies before they do unless they follow procedures to make the change before the former spouse dies.

DFAS officials said opinions provided the their general counsel office "are particularized to the specific case under review and are not published," although officials have made changes to the Financial Management Regulation governing SBP and have advised the SBP managers for each of the services of the change.

Brown said that a few years before his former wife died, he called DFAS to ask how to transfer his SBP benefit if his former wife died before him. He said he was told to submit a copy of the former spouse's death certificate and a copy of his marriage certificate to his current wife.

He said he was quite surprised when he called to request a transfer after his ex-wife's death in 2013. The change in DFAS policy appears to have happened about five months before her death.

Mark Sullivan, a family law attorney representing Brown, said he is working with two other clients in the same situation, including one whose former spouse is terminally ill.

"Our client is going to have to approach her about giving him [back] the SBP," said Sullivan, a retired Army Reserve colonel. "It's a very awkward situation. It requires a great deal of sympathy and delicacy."

"In general, the laws governing the SBP do not permit a change from former spouse to spouse coverage after the former spouse has died," DFAS officials wrote in a memorandum to the Air Force Board for Correction of Military Records in October, after Brown had appealed his case to the board. That appeal is still pending.

The DFAS official noted that the Defense Department's Office of the General Counsel has determined that such transfers are not allowed. That's because it could lead to a situation in which a married retiree could avoid paying premiums after the death of an ex-spouse if the retiree had not reached the point of being fully paid-up into SBP, but could still receive the benefit of the annuity for a current spouse.

"Because it is not expressly permitted by the SBP statute, such a change is not permitted," officials stated.

"I believe this was an unintended consequence," Brown said. "The law doesn't say you can, but it doesn't say you can't, either. So I'm in a dilemma."

For now, he can only wait on his appeal. "We can afford a lawyer ... many guys can't," Brown said. "We're fighting this for other people out there, so their spouses can live out their days more comfortably."

Transferring beneficiaries

Under the 2013 change in how the Defense Finance and Accounting Service interprets the law governing the military Survivor Benefit Plan, an annuity granted to the former spouse of a retiree can be transferred — but only before the former spouse dies.

Steve Burghardt, a spokesman for the Defense Finance and Accounting Service, said specific procedures depend on the retiree's particular situation:

*When SBP coverage for a former spouse is included as part of a divorce settlement, the retiree must provide an amended court order showing a change in the original settlement, removing the obligation to provide former spouse coverage, and shifting the benefit to the new spouse.

*If SBP coverage is governed by a written agreement between the retiree and former spouse, both must provide current signed statements of agreement in the change of SBP beneficiary.

*If the former spouse coverage was voluntarily entered by the member, the member can change the beneficiary designation.

Karen has covered military families, quality of life and consumer issues for Military Times for more than 30 years, and is co-author of a chapter on media coverage of military families in the book "A Battle Plan for Supporting Military Families." She previously worked for newspapers in Guam, Norfolk, Jacksonville, Fla., and Athens, Ga.

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