RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-01924
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His child only coverage under the Survivor Benefit Plan (SBP) be
changed to spouse and child coverage.
APPLICANT CONTENDS THAT:
At the time of his retirement, he elected spouse and child
coverage; however, due to his divorce the, SBP coverage was
changed to former spouse and child. His former spouse passed away
on 13 Jan 14 and as a result of her passing his SBP coverage was
changed to child only. He wants his child only SBP coverage
changed to spouse and child with his current spouse as the SBP
beneficiary.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
According to the Defense Finance and Accounting Service, the
applicant retired from the Air Force on 1 Jul 74.
On 13 May 14, SAF/MRBR notified the applicant that he needed to
complete a signed notarized retiree affidavit (Exhibit B). In
response the applicant provided the signed notarized retiree
affidavit (Exhibit D).
The remaining relevant facts pertaining to this application are
contained in the memorandum prepared by the Air Force office of
primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
DFAS-JFBE/CL recommends denial indicating there is no evidence of
an error or an injustice. At the time of the applicants 1 Jul 74
retirement he was married and elected SBP for spouse and child.
The parties divorced on 5 Sep 95. On 6 Sep 95, his coverage was
changed to former spouse and child. On 11 Sep 99, the applicant
married S. On 13 Jan 14, the applicants former spouse passed
away and as a result of her passing his SBP coverage was changed
to child only.
Under the laws governing SBP an election for former spouse
coverage terminates any prior coverage held. Furthermore, the law
does not permit a change from former spouse to spouse coverage
after the former spouse has died. The Department of Defense (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. 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. The statue has
been interpreted to mean that the change from former spouse to
spouse coverage must be made while the former spouse is living.
There is no evidence the applicant sought to change the former
spouse coverage to spouse prior the death of his former spouse.
Therefore, the applicant is not eligible to change his SBP
coverage from child to spouse and child. On occasion Congress
authorizes an Open Season enrollment period to allow retirees to
enroll in SBP. The applicant will have the option to elect spouse
coverage during an open enrollment.
A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant argues whether or not he would make the monthly
premium payments is not the issue because he has made 410 monthly
premium payments and SBP requires 360 months of premium payments
for the SBP to be paid in full. He is requesting that his SBP
coverage be reinstated to the survivor coverage he initially
enrolled in. His SBP should be able to be transferred to his
current spouse.
The applicants complete response is attached at Exhibit F.
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. The applicant
contends he should be allowed to amend his child only SBP coverage
to add his current spouse since his former spouse is deceased and
his SBP premiums have been paid in full. We took notice of the
applicants complete submission, to include his rebuttal response,
in judging the merits of the case. We note, under the laws
governing Survivor Benefit Plan a request to change former spouse
coverage to spouse coverage must be done prior to the death of the
former spouse. Furthermore, there is no evidence the applicant
requested a changing the former spouse coverage to spouse coverage
prior to his former spouses death. Furthermore, the applicant
may in the future elect SBP for his current spouse during an
authorized open enrollment by Congress. Therefore, we agree with
the opinion and recommendation of the Air Force office of primary
responsibility (OPR) and adopt its 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.
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-2014-01924 in Executive Session on 6 May 15 under the
provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
The following documentary evidence pertaining AFBCMR Docket Number
BC-2014-01924 was considered:
Exhibit A. DD Form 149, dated 21 Apr 14, w/atchs.
Exhibit B. Letter, SAF/MRBR, dated 13 May 14, w/atch.
Exhibit C. Memorandum, DFAS-JFBE-CL, dated 3 Jun 14.
Exhibit D. SBP Marital Status Affidavit Retiree, dated
11 Jun 14.
Exhibit E. Letter, SAF/MRBR, dated 4 Aug 14.
Exhibit F. Letter, Applicant, dated 26 Aug 14.
3
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