RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2013-02604

				COUNSEL:  NONE

				HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to reinstate Former Spouse Survivor 
Benefit Plan (SBP) coverage and show that he elected coverage 
during retirement out-processing in 2001.  

________________________________________________________________

APPLICANT CONTENDS THAT:

The election of SBP benefits for his former spouse was directed 
in their 6 November 1995 divorce decree.  After his retirement 
from the Air Force, the Defense Finance Accounting Service  
(DFAS) enrolled him in SBP and deducted premiums from his 
retired pay from the date of his retirement through January 
2009.  At that time, DFAS noticed that they had enrolled him in 
their database using a default entry of SBP Spouse, not SBP 
Former Spouse, and unilaterally and summarily canceled his SBP 
enrollment and refunded most, but not all, of the monies paid.  
They notified him of this decision by letter dated 
10 February 2009, and suggested he contact them if he had 
questions.  He contacted DFAS to ask about the matter and have 
it corrected to SBP Former Spouse.  After trying to convince 
DFAS, over the course of that first year, to reinstate his SBP 
he was confused and frustrated and let the matter lie until 
February 2013.  Once again, he talked with DFAS representatives 
on the phone and they told him he could apply directly to DFAS 
to have it reinstated.  He applied in February and received 
their letter dated 5 April 2013, informing him they were 
declining to make a decision in the matter and his only recourse 
was to apply to the AFBCMR.  

In support of his request, the applicant submits a personal 
statement, a copy of his DD Form 2656-1, Survivor Benefit (SBP) 
Election Statement for Former Spouse Coverage, dated 
31 March 2001, copies of pertinent pages from his divorce decree 
and DFAS correspondence.  

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

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STATEMENT OF FACTS:

According to documents extracted from the military personnel 
database system (MilPDS) the applicant is a former member of the 
Regular Air Force who served from 9 March 1981 through 
31 May 2001 and was retired from active duty effective 
1 June 2001, in the grade of Major, O-4.  

The applicant elected former spouse and child(ren) SBP coverage 
based on full retired pay on 31 March 2001.  The youngest child 
lost eligibility in April 2007.  

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force at Exhibit C.  

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AIR FORCE EVALUATION:

1.  DFAS/CL recommends denial.  DFAS/CL states that according to 
law, they cannot provide former spouse SBP coverage without an 
election at retirement for former spouse SBP or a deemed election 
from the former spouse or her attorney in her behalf within one 
year from the date of the final divorce.  

2.  The applicant was provided automatic coverage for SBP as DFAS 
did not receive his election for former spouse and child coverage.  
The applicant's military retired pay account was established by 
the branch of service.  When the branch initiates a member's 
retired pay account, all documents relative to the retirement 
process are retained by the branch of service.  When a divorce 
occurs, either prior to or after retirement, the former spouse has 
up to one year to deem an SBP election.  The applicant and former 
spouse were divorced on 6 November 1995, so the former spouse had 
until 6 November 1996, to submit her request, regardless of the 
member's duty status (active  or retired).  Since the applicant 
had never made a prior election, he could elect coverage for his 
former spouse upon his retirement.  They never received the 
applicant's original forms for retirement.  Therefore, when his 
account was established he was provided automatic SBP coverage for 
spouse since they did not know that he was divorced.  

3.  SBP premiums for spouse coverage were deducted from the 
applicant's retired pay account beginning 1 June 2001 through 
31 January 2009.  However, they received the DD Form 2656-1 from 
the former spouse on 1 December 2008, with notification that the 
applicant and former spouse were divorced on 6 November 1995.  
According to the final decree of divorce, the applicant was court-
ordered to maintain his former spouse as a former spouse 
beneficiary for SBP.  However, since they never received the 
original retirement paperwork and were unaware of the divorce 
until they received the correspondence from the former spouse, 
they cannot implement former spouse SBP coverage at this time.  
However, if the Board should correct the record to reflect that a 
deemed election was received from the former spouse within one-
year of the divorce; or, that the applicant elected former spouse 
SBP coverage upon his retirement, they will correct his SBP 
election to reflect former spouse coverage.  Should the Board 
approve the applicant's request to change SBP spouse coverage to 
former spouse coverage, they will need to collect the premiums 
from him. 

The complete DFAS/CL evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

1.  In further support of his appeal, the applicant reiterates 
his request for the Board to direct DFAS to reinstate his SBP 
former spouse benefit.  He further states that, given DFAS’ 
ongoing mischaracterization or misunderstanding of the facts of 
his case, he hereby expresses his desire to appear before the 
Board if they deem it warranted to help explain his case.  He 
would like to rebut the characterization of his case and the 
tone of DFAS’ letter.  He never elected “no beneficiary,” DFAS 
did; and his request is not the “result of divorce,” rather it 
is the result of an incorrect entry by DFAS in their database.  
He gives a brief chronology of events and actions to put the 
facts of his case in proper context.  

2.  The applicant points out that in paragraph 2 of their letter 
DFAS states, “therefore, when his account was established he was 
provided automatic SBP coverage for spouse since we did not know 
that he was divorced.”  In actuality, since DFAS claims they 
never received the original SBP enrollment form from the Air 
Force, they had no idea whether he was married, single, or 
divorced.  Without the form, their default action was automatic 
enrollment in SBP spouse, whether he was married or not.  
However, the various categories that exist in the DFAS database 
were not apparent to him; he just knew that they were 
withholding SBP premiums from his pay.  

3.  Lastly, the applicant states he submits this rebuttal 
because he does not want the DFAS letter to give the Board the 
impression that his former spouse and he came out of nowhere in 
2008, seven years after his retirement, and started asking for 
SBP former spouse benefits.  He enrolled in “SBP for former 
spouse” at his Air Force retirement out-processing in 2001, and 
DFAS withheld SBP premiums from his retirement pay since the 
beginning of his retirement.  He believed everything was in 
order regarding the SBP benefit he earned after 20 years of 
service and had properly applied for via the DD Form 2656-1.  

The applicant’s complete response, with attachment, is at 
Exhibit E.  

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 warranting 
corrective action.  We took notice of the applicant's complete 
submission, to include his rebuttal, in judging the merits of 
the case; however, we do not find he has met his burden of 
establishing an error or injustice to warrant relief.  We note 
that although the applicant made a valid election for SBP former 
spouse and child(ren) coverage at the time of his 2001 
retirement; his former spouse remarried on 21 May 2000, which 
rendered her ineligible for SBP annuity while remarried prior to 
age 55.  Where extraordinary circumstances exists that would 
justify correction of the record, the Board generally seeks to 
correct the record to prevent an injustice.  However, the 
correction, as requested by the applicant, is not possible since 
former spouse coverage and premiums are suspended if the former 
spouse remarries before age 55.  Accordingly, 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 issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

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 25 March 2014, under the provisions of 
AFI 36-2603:

			, Vice Chair
			, Member
			, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02604 was considered:

    Exhibit A.  DD Form 149 dated 27 May 2013, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Record.
    Exhibit C.  Letter, DFAS/CL dated 19 June 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 10 July 2013.
    Exhibit E.  Letter, Applicant, dated 24 July, w/atch.