RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01224

 					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.  

He remarried on 7 Sep 13.  AFI 36-3006, Survivor Benefit Plan 
(SBP) (Active, Guard, Reserve, and Retired), paragraph 6.4.9, 
permits change from former spouse coverage if the former spouse 
dies.  There is nothing in Chapter 73 of 10 U.S.C. that 
prohibits approval of his request.  His request was previously 
denied by the Defense Finance and Accounting Service (DFAS).
  
He has paid 222 premium payments for coverage that he cannot 
utilize for his current spouse due to a recent and incorrect 
interpretation of SBP legislation by DFAS.  

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


STATEMENT OF FACTS:

On 1 Jul 93, the applicant retired from the Regular Air Force in 
the grade of colonel (0-6).    

According to his divorce decree, issued by the Circuit Court for 
the City of Alexandria, VA he and his former spouse were married 
on 7 Sep 68 and were divorced on 22 May 98.  The court ordered 
the applicant to designate his former spouse as the SBP 
beneficiary.  

According to a Florida certificate of death, local file number 
11-5940, the applicant’s former spouse died on 17 Dec 11.

According to his marriage certificate issued by the Commonwealth 
of Virginia, clerk’s number 201303121, the applicant remarried 
on 7 Sep 13.  

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.  The laws governing SBP state that an election 
for former spouse SBP coverage terminates any prior coverage 
held.  Therefore, the law does not permit adding his current 
spouse to his SBP coverage.  He was advised of his option to 
petition the Board and was provided a DD Form 149, Application 
for Correction of Military Record under the Provisions of Title 
10, U.S. Code, Section 1552.  


AIR FORCE EVALUATION:

DFAS-JBJE/CL recommends denial as the applicant may not 
establish spouse coverage for his newly acquired spouse.  Upon 
his divorce in 1998, his spouse coverage stopped and upon 
receipt of his Election Statement for Former Spouse Coverage and 
his court certified final decree of divorce, former spouse 
coverage was established.  The establishment of former spouse 
coverage terminated all other previous coverage per 10 U.S.C. § 
1448(b)(3)(A)(ii).  

Per 10 U.S.C. § 1450(f)(1)(C) an election for change in coverage 
may only be invoked when the retired member is married and the 
person to whom the retired member is married can take the place 
or stead of the former spouse.  In the applicant’s case, he was 
not remarried until 7 Sep 13.  The coverage for his former 
spouse lasted until 17 Dec 11 when his former spouse died.  

The laws governing the SBP do not permit a change from former 
spouse to spouse coverage after the former spouse has died.  
Because it is not expressly permitted by the SBP statute, such a 
change is not permitted.  In particular, the DOD Office of 
General Counsel (OGC) has 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 is because 
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 is ultimately submitted.  

A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit B.


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. § 1450(f)(1) does not permit a change from former 
spouse to spouse coverage after the former spouse has died.  On 
the other hand, the statute does not prohibit such a change.  It 
is common practice for regulations implementing statute to 
clarify the intent of statutes since it is commonly understood 
that many statutes are difficult to write and often require 
regulatory clarification.  Therefore, to argue that such a 
change cannot be permitted because it is not expressly permitted 
by statute is a perversion of long standing regulatory practice.

DFAS explains that the DOD OGC does not permit a change from 
former spouse coverage after the former spouse has died since it 
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.  While he has 
not read OGC’s determination, it would seem that the concern 
described could easily be resolved by requiring a member’s 
decision to reinstate SBP for the new spouse to be made within 
one year of remarriage, or if already remarried, within one year 
of the death of the former spouse, as appropriate.  

This is a critical matter to him as he relied on a verbal 
explanation of the SBP rules regarding a new spouse from Air 
Force personnel to establish a prenuptial agreement with his 
current spouse.  It is his understanding that DFAS interpreted 
the SBP legislation in May 13, after the death of his former 
spouse and before his remarriage, to change the long standing 
practice of allowing members to reinstate SBP for a new spouse 
acquired after the death of a former spouse beneficiary.  

The applicant’s complete response, with attachments, 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 timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We note 
that DFAS states 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).  Regardless of such a state of 
the law it does not prevent us from providing meaningful relief 
based on the preponderance of evidence showing an error or 
injustice.  However, after thoroughly reviewing the evidence of 
record, and noting the applicant's contentions, we are not 
persuaded that relief is warranted.  Other than his own 
assertions, he has presented no evidence that he was treated 
differently than others similarly situated.  Therefore we agree 
with the opinion and recommendation of the Air Force office of 
primary responsibility and adopt its rationale as the basis for 
our conclusion the applicant has failed to sustain his burden of 
proof that he has 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 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 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-2014-01224 in Executive Session on 17 Feb and 1 May 
15 under the provisions of AFI 36-2603:

	 , Vice Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Mar 14, w/atchs.
	Exhibit B.  Memorandum, DFAS-JBJE/CL, dated 2 Jun 14.  
	Exhibit C.  Letter, SAF/MRBR, dated 20 Jun 14.  
	Exhibit D.  Letter, Applicant, dated 26 Jun 14, w/atch.
        Exhibit E.  Letter, SAF/MRBR, dated 30 Jul 14.