RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05512
	XXXXXXX	COUNSEL: NONE
		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His records be changed to show that he made a timely election for 
“spouse only” coverage under the Survivor Benefit Plan (SBP).

_______________________________________________________________

APPLICANT CONTENDS THAT:

He does not recall ever being told that he was required to report 
any subsequent marriages to maintain spousal eligibility for the 
SBP.  He moved at least 100 miles from the nearest military 
installation and had no contact with any military personnel 
officials beyond using the Defense Finance and Accounting Service 
(DFAS) web site to report address changes.

He remarried in Aug 1998 but did not enroll his spouse in any 
benefit programs or get her an identification (ID) card as he was 
unaware of any requirement to do so.  

He and his spouse divorced and he married his current spouse in 
Feb 2012.  When he attempted to enroll her in the SBP he was 
informed, for the first time, that because he had not enrolled 
his previous spouse in the SBP, his current spouse was not 
eligible for enrollment.

In support of his request, the applicant provides copies of his 
divorce decree, marriage certificate, DD Form 214, Certificate of 
Release or Discharge from Active Duty, and DFAS letter

His complete submission, with attachments, is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in 
the letter prepared by the appropriate office of the Air Force.  
Accordingly, there is no need to recite these facts in this Record 
of Proceedings.

_______________________________________________________________



AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial.  DPFFF states that a member, who is 
unmarried at retirement, may elect coverage for the first spouse 
acquired after retiring.  However, the election must be made 
before the first anniversary of the marriage.  If a member fails 
to make an election before then, SBP coverage for that person or 
another person of that category may be elected only if Congress 
authorizes an open enrollment period.

The applicant was not married, but had eligible children when he 
retired effective 1 May 1996.  He failed to make an SBP election 
prior to retirement and absent a valid election, the Defense 
Finance and Accounting Service-Cleveland (DFAS-CL) established 
child only SBP coverage based on full retired pay to comply with 
the law.

The Defense Enrollment Eligibility Reporting System (DEERS) 
records reflect the applicant remarried on 29 Aug 1998; however, 
he failed to submit a valid SBP election within the first year of 
their marriage.  His youngest child lost eligibility due to age 
and SBP premiums ceased effective 1 Jul 2008.  The parties 
divorced on 19 Apr 2010.  The applicant remarried again on 1 Feb 
2012.

The Afterburner, News for Retired Personnel, routinely contains 
articles advising retirees of their SBP options when marrying 
after retirement.  Since the applicant failed to submit a valid 
election within the first year of his first marriage, coverage 
can only be provided if Congress authorizes another open 
enrollment.  Had the applicant submitted an election within the 
first year of his marriage in 1996, SBP premiums would have been 
deducted until their divorce.  Premiums would have been suspended 
and then reinstated on the first anniversary of his subsequent 
marriage in 2012.  SBP is similar to commercial life insurance in 
that an individual must elect to participate during the 
opportunities provided by the law and pay the associated premiums 
in order to have coverage.  Providing this applicant an 
additional opportunity to elect SBP coverage would be inequitable 
to other retirees in similar situations and is not justified by 
the facts

The complete DPFFF evaluation is at Exhibit B.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

AFI 36-3006, Survivor Benefit Plan (SBP) (Active, Guard, Reserve, 
and Retired), paragraph 6.1.2 Spouse Acquired After Retirement 
When No Spouse at Retirement, states “A member who is unmarried 
on the date of retirement may elect spouse SBP coverage if he/she 
marries after retiring.  The election request with appropriate 
documentation (reference paragraph 4.4 and attachment 8) must be 
received by DFAS-CL before the first anniversary of the marriage 
in order to be considered valid."  This instruction repeatedly 
uses the term "may elect" which would lead one to believe that 
there is an option involved, not a definitive requirement for 
enrollment of the first spouse.  The instruction indicates no 
penalty for failing to enroll all subsequent spouses after 
retirement.  AFI 36-3006 does not state, as AFPC/DPFFF asserts, 
that "If a member fails to make an election before then, SBP 
coverage for that person or another person of that category may 
be elected only if Congress authorizes an open enrollment 
period."

AFPC/DPFFF states the Afterburner, News for Retired Personnel 
routinely contained articles advising retirees of their SBP 
options when marrying after retirement.  He recalls receiving the 
Afterburner from time to time but was not aware that it was 
required reading or that the contents could impact his retiree 
benefits and rights.

The applicant’s complete response 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 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 error or injustice.  After a 
thorough review of the evidence of record and applicant’s 
submission, we are not persuaded that his records should be 
altered to show that he made a timely election for “spouse only” 
coverage under the Survivor Benefit Plan (SBP). His contentions 
are duly noted; however, we do not find these assertions, in and 
by themselves, sufficiently persuasive to override the rationale 
provided by the Air Force Office of Primary Responsibility (OPR).  
Therefore agree with the opinion and recommendation of the Air 
Force OPR and adopt the rationale expressed as the basis for our 
decision that the applicant has failed to sustain his burden of 
having suffered either an error or an injustice.  In view of the 
above and absent persuasive evidence to the contrary, we find no 
basis to recommend granting the relief sought.

_______________________________________________________________

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 29 Aug 2013, under the provisions of AFI 36-
2603:

      , Panel Chair 
      , Member
      , Member

The following documentary evidence was considered in AFBCMR BC-
2012-05512:

    Exhibit A.  DD Form 149, dated 10 Dec 2012, w/atchs.
    Exhibit B.  Letter, AFPC/DPFFF, 11 Mar 2013.
    Exhibit C.  Letter, SAF/MRBR, dated 22 Mar 2013.
    Exhibit D.  Letter, Applicant, dated 10 Apr 2013.





								
								Panel Chair