RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05050
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.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
On 1 Aug 75, the applicant retired from the Regular Air Force in the grade of lieutenant colonel.
The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force Offices of Primary Responsibility (OPR), which are attached at Exhibits C and D.
AIR FORCE EVALUATION:
DFAS recommends denial indicating there is no evidence of an error or an injustice. The applicant elected SBP spouse coverage upon his retirement on 1 Aug 75. Pursuant to the final judgment of the applicants dissolution of marriage, 21 Apr 88, he was ordered to continue the SBP, naming his former spouse as the SBP beneficiary. Upon the death of the applicants former spouse, he requested his current spouse (married applicant 2 Jun 90) become the SBP beneficiary. Because the laws governing SBP do not expressly address changing former spouse coverage to spouse coverage after the former spouse dies, such a change is not permitted. The Department of Defense (DoD) Office of General Counsel (OGC) has provided prior guidance on this issue, in particular they have 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 determination is based on that 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 under 10 U.S.C. 1450(f) (1) is ultimately submitted perhaps at the end of the members life. The applicant has the option to elect spouse coverage during a future open season enrollment.
A complete copy of the DFAS evaluation is at Exhibit C.
AFBCMR Legal advisor does not provide a recommendation but describes whether or not this case is legally viable to go to a panel of the Board. They opine that if the DFAS advisory is correct 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), such a state of the law would not prevent the Board from taking the case and either providing meaningful relief based on the preponderance of evidence showing an error or injustice, or denying on merits.
A complete copy of the AFBCMR Legal advisory is at Exhibit D.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 15 Jul 14, the applicant provided a copy of his final judgment of dissolution of marriage, dated 21 Apr 88, to show the requirements of the divorce order establishing former spouse SBP coverage (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 an error or injustice. We took notice of the applicants complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of DFAS and adopt their rationale as the basis for our conclusion the applicant has not 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 requested relief.
4. The applicants 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-2013-05050 in Executive Session on 9 Oct 14, under the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 22 Oct 13, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, DFAS, dated 18 Mar 14.
Exhibit D. Letter, SAF/MRBR, dated 2 Jul 14.
AF | BCMR | CY2014 | BC 2014 01224
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. 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. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of...
AF | BCMR | CY2014 | BC 2014 03039
AIR FORCE EVALUATION: DFAS-JBJE/CL states according to law they cannot recommend the applicants record be changed as requested. The applicant had former spouse SBP coverage. 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...
AF | BCMR | CY2012 | BC-2012-01544
Based on the available evidence of record and the applicants submission, it appears the decedent and the applicant were married in Feb 09. Subsequent to the divorce of his first spouse, a deemed election for former spouse coverage was submitted to DFAS and accepted in accordance with the divorce decree and the governing law. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 12.
ARMY | BCMR | CY2013 | 20130011766
Counsel provides copies of the following documents: * FSM's Chronological Statement of Retirement Points * FSM's Death Certificate * Final Judgment of Dissolution of Marriage * Mediation Agreement * 20-year letter * email messages, dated March 2013 * Military Pension Division Order * former attorney's letter to DFAS, dated 28 December 2009 * extract of DODFMR 7000.14-R * HRC letter, dated 19 January 2012 * applicant's Application for Survivor Annuity, dated 30 January 2012 * HRC letter,...
ARMY | BCMR | CY2008 | 20080018659
On 23 May 2000, the applicant and the FSM were divorced. The Separation and Property Settlement Agreement to the Final Judgment of Dissolution of Marriage ordered the FSM to maintain the applicant as the beneficiary of his SBP election; that is, he was ordered to change his SBP coverage from spouse only to former spouse. On 7 June 2004, the applicant filed a request with DFAS for, in effect, a deemed election changing SBP coverage from spouse only to former spouse.
ARMY | BCMR | CY2010 | 20100011807
The applicant, the daughter of a deceased former service member (FSM), requests the FSM's records be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse. In a letter dated 14 December 2007, DFAS informed the applicant that charges for the SBP were being deducted from the FSM's retired pay up until the time of his death. The FSM had one year from the date of divorce to change his RCSBP election to former spouse coverage.
AF | BCMR | CY2014 | BC 2014 01931
When his former spouse died, he has letters from DFAS informing him, when there is no eligible spouse beneficiary (which he believes is the case because his former spouse is not alive to be a beneficiary), the law provides the following options (1) Resume coverage with annuity and cost amounts increased by applicable cost-of-living increases; (2) Increase coverage up to and including your full retired pay; or, (3) Elect not to have the spouse portion of coverage resumed. For a brief...
ARMY | BCMR | CY2014 | 20140008892
On 2 August 2013, they received his application for the annuity and at that time they discovered that he and the FSM had remarried on 5 September 2002. c. If a member who had elected former spouse coverage subsequently married, subject to certain limitations, she/he could change the former spouse election to provide an annuity on the new spouse in accordance with Title 10, USC, section 1450(f). Notwithstanding the fact that neither the FSM nor the applicant notified DFAS at any time after...
ARMY | BCMR | CY2010 | 20100015534
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a...
AF | BCMR | CY2013 | BC 2013 05676
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05676 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated the beneficiary for her former spouses Survivors Benefit Plan (SBP). As such, we find the death certificate provided by the applicant sufficient to conclude that the decedent was not married at the time of his death. ...