RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01224 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be corrected to show his current spouse as the beneficiary for his Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: He wants his current spouse to be the beneficiary of his SBP as a result of the death of his former spouse, who was his SBP beneficiary in accordance with the final judgment of the dissolution of his marriage to his former spouse. He remarried on 7 Sep 13. AFI 36-3006, Survivor Benefit Plan (SBP) (Active, Guard, Reserve, and Retired), paragraph 6.4.9, permits change from former spouse coverage if the former spouse dies. There is nothing in Chapter 73 of 10 U.S.C. that prohibits approval of his request. His request was previously denied by the Defense Finance and Accounting Service (DFAS). He has paid 222 premium payments for coverage that he cannot utilize for his current spouse due to a recent and incorrect interpretation of SBP legislation by DFAS. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Jul 93, the applicant retired from the Regular Air Force in the grade of colonel (0-6). According to his divorce decree, issued by the Circuit Court for the City of Alexandria, VA he and his former spouse were married on 7 Sep 68 and were divorced on 22 May 98. The court ordered the applicant to designate his former spouse as the SBP beneficiary. According to a Florida certificate of death, local file number 11-5940, the applicant’s former spouse died on 17 Dec 11. According to his marriage certificate issued by the Commonwealth of Virginia, clerk’s number 201303121, the applicant remarried on 7 Sep 13. In a letter dated 30 Jan 14, DFAS advised the applicant they were unable to process his request for SBP coverage for his current spouse. The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held. Therefore, the law does not permit adding his current spouse to his SBP coverage. He was advised of his option to petition the Board and was provided a DD Form 149, Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552. AIR FORCE EVALUATION: DFAS-JBJE/CL recommends denial as the applicant may not establish spouse coverage for his newly acquired spouse. Upon his divorce in 1998, his spouse coverage stopped and upon receipt of his Election Statement for Former Spouse Coverage and his court certified final decree of divorce, former spouse coverage was established. The establishment of former spouse coverage terminated all other previous coverage per 10 U.S.C. § 1448(b)(3)(A)(ii). Per 10 U.S.C. § 1450(f)(1)(C) an election for change in coverage may only be invoked when the retired member is married and the person to whom the retired member is married can take the place or stead of the former spouse. In the applicant’s case, he was not remarried until 7 Sep 13. The coverage for his former spouse lasted until 17 Dec 11 when his former spouse died. The laws governing the SBP do not permit a change from former spouse to spouse coverage after the former spouse has died. Because it is not expressly permitted by the SBP statute, such a change is not permitted. In particular, the DOD Office of General Counsel (OGC) has previously determined that 10 U.S.C. § 1450(f)(1) does not permit a change from former spouse to spouse coverage after the former spouse has died. This is because allowing such a change would permit a situation where a married member could avoid paying premiums after the death of the former spouse but still receive the benefit of an annuity for his spouse, so long as an election is ultimately submitted. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: DFAS believes that “Because it is not expressly permitted by the SBP statute, such a change is not permitted.” Further DFAS states, “In particular DOD OGC has previously determined that 10 U.S.C. § 1450(f)(1) does not permit a change from former spouse to spouse coverage after the former spouse has died. On the other hand, the statute does not prohibit such a change. It is common practice for regulations implementing statute to clarify the intent of statutes since it is commonly understood that many statutes are difficult to write and often require regulatory clarification. Therefore, to argue that such a change cannot be permitted because it is not expressly permitted by statute is a perversion of long standing regulatory practice. DFAS explains that the DOD OGC does not permit a change from former spouse coverage after the former spouse has died since it would permit a situation where a married member could avoid paying premiums after the death of the former spouse but still receive the benefit of an annuity for his spouse. While he has not read OGC’s determination, it would seem that the concern described could easily be resolved by requiring a member’s decision to reinstate SBP for the new spouse to be made within one year of remarriage, or if already remarried, within one year of the death of the former spouse, as appropriate. This is a critical matter to him as he relied on a verbal explanation of the SBP rules regarding a new spouse from Air Force personnel to establish a prenuptial agreement with his current spouse. It is his understanding that DFAS interpreted the SBP legislation in May 13, after the death of his former spouse and before his remarriage, to change the long standing practice of allowing members to reinstate SBP for a new spouse acquired after the death of a former spouse beneficiary. The applicant’s complete response, with attachments, is at Exhibit D. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note that DFAS states that the death of the former spouse precludes the plan participant (applicant) from changing his beneficiary under 10 U.S.C 1450 (f)(1)(A). Regardless of such a state of the law it does not prevent us from providing meaningful relief based on the preponderance of evidence showing an error or injustice. However, after thoroughly reviewing the evidence of record, and noting the applicant's contentions, we are not persuaded that relief is warranted. Other than his own assertions, he has presented no evidence that he was treated differently than others similarly situated. Therefore we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2014-01224 in Executive Session on 17 Feb and 1 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Mar 14, w/atchs. Exhibit B. Memorandum, DFAS-JBJE/CL, dated 2 Jun 14. Exhibit C. Letter, SAF/MRBR, dated 20 Jun 14. Exhibit D. Letter, Applicant, dated 26 Jun 14, w/atch. Exhibit E. Letter, SAF/MRBR, dated 30 Jul 14.