RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
02125
                                             INDEX  CODE:   137.03;
128.10

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  9 JANUARY 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

It appears the applicant is requesting his records be corrected  to
show that he did not reinstate his suspended Survivor Benefit  Plan
(SBP) coverage for his spouse following their marriage  on  14  Feb
98.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Prior to his civil service  retirement,  he  requested  information
from  the  Defense  Finance  Accounting  Service  (DFAS)  regarding
whether his wife of seven years was eligible for both the  military
SBP and Civil Service Retirement System (CSRS) SBP.  He  asked  for
the amount so he could decide  what  was  best  for  his  wife,  to
combine his military time and get both CSRS and SBP, or not.

He does not believe he should pay the $9086.01.  All of  his  Leave
and Earning Statements (LESs) showed that his wife was not enrolled
in SBP.  He gladly supported the program and paid into SBP  for  20
years.  He lost his first wife in 1991, and remarried in 1998.   He
has always covered his current wife in CSRS SBP and  has  completed
this on combining to retire.

In  support  of  applicant’s   appeal,   he   submits   copies   of
correspondence to and from DFAS, various  documents  pertaining  to
civil service retirement, his DD  Form  214,  two  retiree  account
statements, and fact sheets on SBP.

The applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicated the member and his first  wife  married  on
5 Jan 51 and he retired 1 Sep 71.  The member elected  spouse  only
coverage based on  full  retired  pay  during  the  Plan’s  initial
enrollment period authorized by Public Law (PL) 92-425.  His  first
wife died on 3 Jul 91 and SBP premiums were suspended retroactively
to the date of  her  death.   The  Defense  Enrollment  Eligibility
Reporting System (DEERS) records  reflect  the  applicant  and  his
current wife were married on 14 Feb 98, but the  member  failed  to
notify the pay center of the change to his marital status or submit
a request to not extend SBP coverage to his current wife before the
first anniversary of their marriage.  His current wife  became  the
eligible spouse beneficiary  on  14  Feb  99.   In  Jun  05,  DFAS-
Cleveland Center (DFAS-CL) learned of the  applicant’s  remarriage,
established coverage  for  her  as  required  by  the  statute  and
notified the member of the retroactive premium debt  (approximately
$9,000).

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommended denial and states, in part, the  member’s
claim that his intent was to compare SBP costs before combining his
military and civil service time when he retires is  without  merit.
At the time he submitted his request to  the  finance  center,  his
wife was already covered under the military SBP since they had been
married for more than one year.  There is no provision to  postpone
a decision regarding SBP coverage.

PL 99-145, 8 Nov 85 (effective  1  Mar  86),  provides  a  one-year
period during which SBP participants,  who  have  suspended  spouse
coverage and who subsequently remarry, may choose to not extend SBP
protection to the newly-acquired  spouse.   Retirees  must  send  a
written request to decline SBP for the new spouse  to  the  DFAS-CL
before the first anniversary of the marriage.  Failure  to  request
termination during the period authorized by PL  99-145  results  in
the previous level of SBP coverage being  automatically  reinstated
on the new spouse’s behalf on the first anniversary,  or  upon  the
birth of a child born of the marriage, if earlier.

The implementing SBP statute ensured that qualified, newly-acquired
spouses are afforded the protection of the SBP  regardless  of  the
member’s failure or delay in notifying the  finance  center.   This
automatic feature of  the  SBP  was  adjusted  by  PL  99-145,  but
requires a participant to take the appropriate  action  to  prevent
coverage  from  being  established.   The  petitioner   had   ample
resources to have known about his opportunity  to  not  extend  SBP
coverage following his remarriage to his current  spouse.   Retired
members are personally responsible to  ensure  they  take  required
action to initiate and maintain their  dependents’  entitlement  to
military benefits.  In the event the applicant had died  after  the
first anniversary of his  remarriage,  his  wife  would  have  been
entitled to receive approximately $1,107 after any SBP premium debt
had been satisfied.  Providing the petitioner additional  time  and
opportunity  to  terminate  his  wife’s  SBP  coverage   would   be
inequitable to other retirees in  similar  situations  and  is  not
justified by the facts.

Although there is no basis in law  to  exempt  a  participant  from
paying SBP monthly premiums, the applicant may complete a  DD  Form
2789, Waiver/Remission of Indebtedness Application, include  copies
of all pertinent documents,  and  submit  the  request  to  Defense
Finance and Accounting Service – Denver Center, Attn: DFAS-POCT/DE,
6760 E. Irvington Place, Denver CO 80279-7300.

If the Board’s decision is to approve the  request,  it  should  be
contingent upon obtaining a properly notarized statement  from  his
wife concurring in the permanent revocation of SBP coverage.

A complete copy of the Air Force evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states this situation started  with  his  11  Feb  05
request to DFAS to obtain cost and facts as  to  whether  he  could
enroll his wife in the military SBP  and  CSRS  SBP.   He  received
information in 2005, showing his wife could get both  military  and
CSRS SBP.  Prior to this, he had his wife enrolled in only the full
CSRS SBP.  He was not aware of PL 99-145 prior to this inquiry.  He
retired 14 years before it was effective.

He received a reply from DFAS stating he was overpaid for six years
and owed over $9,000 dollars and he had 30 days to pay  it,  or  it
would be taken out of his CSRS pay.  The  letter  also  stated  his
wife had  been  enrolled  for  six  years.   This  debt  was  never
mentioned during his efforts to obtain  information.   Nothing  was
mentioned about PL 99-145 giving him one year after his  remarriage
to decline or enroll his new wife.  After reviewing the debt letter
from DFAS, he sent DFAS a letter telling them  not  to  enroll  his
wife; he had decided to combine his military time and civil service
time.  He enrolled his wife  in  full  CSRS  SBP  and  she  is  not
eligible for military SBP.

Applicant’s complete response is at Exhibit D.

The Board received a statement in the applicant’s behalf  from  his
support squadron commander (Exhibit E).

On 20 Sep 05, this  office  received  a  notarized  statement  from
applicant’s current spouse, agreeing to permanent revocation of her
husband’s  military  Survivor  Benefit  Plan,   since   the   first
anniversary of their marriage and thereafter.  She  stated  she  is
comfortable with her full coverage in her husband’s CSRS retirement
(Exhibit G).

___________________________________________________________________

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.  Sufficient relevant evidence has been presented to  demonstrate
the existence of error or injustice.  In this respect, we note that
the member elected to participate  in  the  Survivor  Benefit  Plan
(SBP) during the initial enrollment period; however,  his  coverage
was suspended  following  his  first  wife’s  death  in  1991.   He
remarried in 1998, and it appears he was not aware that he had  the
option to not resume his suspended SBP coverage  within  the  first
year of his marriage.  Furthermore, we note  that  his  spouse  has
provided  a  notarized  statement  concurring  in   the   permanent
revocation of SBP coverage which has been in effect on  her  behalf
since 14 Feb 99.  Based on the  foregoing,  we  believe  any  doubt
should be resolved  in  the  applicant’s  favor.   Accordingly,  we
recommend that the records be corrected as indicated below.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that on 1  Mar  98,  he
elected not to resume Survivor Benefit Plan  spouse  coverage,  and
his spouse, XXXXXXXXXXXXXXXX, concurred with his decision.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2005-02125 in Executive Session on 27 October  2005,  under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Kathleen F. Graham, Member
      Mr. Alan A. Blomgren, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 28 Jun 05, w/atchs.
     Exhibit B.  Letter, AFPC/DPPRT, dated 2 Aug 05.
     Exhibit C.  Letter, SAF/MRBR, dated 5 Aug 05.
     Exhibit D.  Letter, Applicant, undated, w/atchs.
     Exhibit E.  Support Memorandum, dated 29 Aug 05.
     Exhibit F.  Letter, AFBCMR, dated 9 Sep 05.
     Exhibit G.  Notarized Statement from Spouse, dated 20 Sep 05.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2005-02125




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of  the  Air
Force relating to [APPLICANT], be corrected to show that on 1 March
1998, he  elected  not  to  resume  Survivor  Benefit  Plan  spouse
coverage, and his spouse, XXXXXXX  X.  XXXXX,  concurred  with  his
decision.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency