RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-01072
INDEX CODE: 137.03
XXXXXXXXXXXXXXXXX COUNSEL: NONE
XXXXXXXXXXXXXX HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show he terminated spouse coverage under the
Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Spouse SBP coverage was reinstated without his knowledge or consent. He
sent a letter to rescind his SBP election in February 1989.
In support of his application, he provided a copy of his request to the
Defense Finance and Accounting Service (DFAS) dated 14 November 2002, with
attachments, requesting cancellation of his account retroactive to 8 May
1991; a copy of his disability rating decision from the Department of
Veteran Affairs (DVA); two letters from the applicant to AFAFC/RP; a copy
of his SBP premium invoice; and a copy of AF Form 1562, SBP Former Spouse
Election Change Declaration. The applicant’s complete submission with
attachments is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was relieved from active duty on 31 December 1978 with 26
years and 15 days of service and retired in the grade of master sergeant
effective 1 January 1979.
The remaining relevant facts pertaining to this application, extracted from
the applicant’s military records, are contained in the letter prepared by
the appropriate office of the Air Force at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR recommends denial. DPPTR is of the opinion that there is no
evidence of Air Force error or injustice in this case. The member’s claim
that SBP coverage was established for his second spouse without his
knowledge is without merit. While his original request to provide coverage
for her is not retrievable, the history clearly reflects the request was
made. Furthermore, DFAS provided a copy of the applicant’s 8 May 1991
letter to the Denver finance center, in which he unequivocally requested
his SBP be changed from his former spouse to his current spouse, as he had
previously requested “more than a year ago.” His second spouse was covered
for the duration of their marriage even though the applicant failed to
remit the SBP costs for this protection after April 1999. If the applicant
had died prior to their divorce, his second spouse would have received a
monthly annuity (approximately $704) after the outstanding SBP premium debt
had been recovered.
SBP spouse coverage is suspended not terminated, when the spouse dies or
the parties divorce. Participants with suspended spouse coverage may
permanently terminate spouse coverage before the first anniversary of their
re-marriage. The member must provide written notice of the re-marriage and
of his/her wish that suspended spouse coverage not be re-established on the
new spouse’s behalf. Absent a valid request to not re-establish SBP
coverage, the new spouse automatically gains eligibility on the first
anniversary of the marriage; SBP premiums become effective the following
month.
The applicant elected spouse and child SBP coverage based on a reduced
level of retired pay prior to his 1 January 1979 retirement. He and his
spouse divorced on 31 March 1987. Denver finance microfiche record entries
reflect that on 20 July 1987 the agency processed the member’s request to
establish former spouse coverage. The applicant married his second spouse
on 26 November 1988. Microfiche entries reflect in March 1989, the
applicant’s request to change voluntary former spouse coverage to spouse
coverage was processed, naming his second spouse as the eligible spouse
beneficiary. Records indicate that the DVA awarded the applicant
disability compensation which exceeded his retirement pay in April 1999, so
a direct remittance account was established to collect SBP premiums. The
applicant failed to pay monthly SBP premiums and a debt has accrued
(currently $3,104).
Public Law (PL) 105-85, 18 November 1997, authorized members, who were
retired more than two years as of 17 May 1998, a one-year opportunity to
disenroll from the SBP (17 May 1998-16 May 1999). Retirees had to complete
a DD Form 2656-2, SBP Termination Request, and obtain the beneficiary’s
notarized consent. Disenrollments were effective the first day of the
month following the date DFAS received a properly completed termination
form postmarked not later than 16 May 1999. There was no refund of
premiums. There is no evidence the applicant submitted a termination
request under PL 105-85. To provide this applicant an additional
opportunity to change his SBP election would be inequitable to other
members in similar situations and is not justified by the facts.
The applicant and his second spouse divorced on 9 October 2002 and the
divorce degree was silent on the SBP. In January 2003, DFAS suspended
spouse SBP retroactive to the date of the divorce.
The DPPTR evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 2 May
2003 for review and comment within 30 days (Exhibit D). As of this date,
this office has received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was not timely filed; however, it is in the interest of
justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. After reviewing the evidence of
record, we are not persuaded that the applicant has been the victim of an
error or injustice. Evidence provided indicates the applicant chose to
elect spouse SBP coverage in March 1989, changing it from former spouse
coverage. The applicant has not provided any evidence that he submitted a
termination request under Public Law 105-85, allowing members a one-year
opportunity to disenroll from SBP (17 May 1998 - 16 May 1999). In
addition, the applicant has provided no evidence that would lead us to
believe that the SBP counselor provided misleading or inaccurate
information at the time of his retirement. Therefore, in the absence of
substantive evidence to the contrary, we agree with the opinion and
recommendation of the Air Force office of primary responsibility and adopt
their rationale as the basis for our conclusion that the applicant has not
been the victim of an error or injustice. Accordingly, we find no
compelling basis to recommend granting the relief sought in this
application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of material error or injustice; that the application was
denied without a personal appearance; and that 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 this application in Executive
Session on 26 June 2003, under the provisions of AFI 36-2603:
Mr. Joseph A. Roj, Panel Chair
Mr. Roscoe Hinton Jr., Member
Mr. William H. Anderson, Member
The following documentary evidence was considered in connection with AFBCMR
Docket No. BC-2003-01072:
Exhibit A. DD Form 149, dated 24 Mar 03, with attachments.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 1 May 03.
Exhibit D. Letter, SAF/MRBR, dated 2 May 03.
JOSEPH A. ROJ
Panel Chair
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