Search Decisions

Decision Text

AF | BCMR | CY2014 | BC 2014 01924
Original file (BC 2014 01924.txt) Auto-classification: Denied
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 applicant’s 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 applicant’s 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 applicant’s 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 applicant’s 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 
applicant’s 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 spouse’s 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

Similar Decisions

  • AF | BCMR | CY2014 | BC 2014 03482

    Original file (BC 2014 03482.txt) Auto-classification: Denied

    Defense Finance and Accounting Service (DFAS) stated that in order to receive the SBP benefit they only needed to be married for 10 years, the former spouse had to be deceased and she had to pay an $18,496.42 debt. The applicant was advised that upon providing these documents, her SBP account would be established and all retroactive pay would be issued. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or...

  • AF | BCMR | CY2014 | BC 2014 01931

    Original file (BC 2014 01931.txt) Auto-classification: Denied

    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...

  • AF | BCMR | CY2014 | BC 2014 03524

    Original file (BC 2014 03524.txt) Auto-classification: Denied

    The Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant requested spouse and child SBP coverage based on full retired pay prior to his 1 Nov 06 retirement. It is unfortunate that the applicant failed to notify DFAS in a timely manner of his marriage, in order to preclude a debt or to deny SBP coverage for her. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 5 Mar 15, he states his spouse provided a letter relinquishing the SBP benefit.

  • AF | BCMR | CY2014 | BC 2014 00712

    Original file (BC 2014 00712.txt) Auto-classification: Approved

    A person's eligibility as an SBP spouse beneficiary terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage. The court order awarded the applicant the SBP and DFAS-CL records continued to reflect the applicant’s name as the eligible spouse beneficiary and SBP premiums continued to be deducted from the member's retired pay until his 14 Oct 13 death. As of this date, no response has been received by this office (Exhibit D).

  • AF | BCMR | CY2014 | BC 2014 02063

    Original file (BC 2014 02063.txt) Auto-classification: Denied

    Beginning on 1 Jan 01, service members who failed to make an RCSBP election within 90 days after receiving their eligibility letter are automatically enrolled in under Option C (immediate annuity on day after date of death) for his dependents. Due to the service member receiving his eligibility letter prior to effective date for automatic SBP coverage, the requested relief cannot be granted by law. While the applicant argues that it is unfair that service members who failed to make an...

  • AF | BCMR | CY2013 | BC 2013 05614

    Original file (BC 2013 05614.txt) Auto-classification: Approved

    There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on 1 Jul 87, he elected to change RCSBP spouse to former spouse coverage based on full retired pay, naming the applicant as the eligible beneficiary. SBP premiums were deducted from the decedent’s retired pay until his 28 Jun 11 death. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to...

  • AF | BCMR | CY2011 | BC-2011-04372

    Original file (BC-2011-04372.txt) Auto-classification: Approved

    There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. The evidence of record reflects that as a part of the divorce settlement the court ordered the applicant to elect former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force...

  • AF | BCMR | CY2005 | BC-2005-02125

    Original file (BC-2005-02125.doc) Auto-classification: Approved

    The member elected spouse only coverage based on full retired pay during the Plan’s initial enrollment period authorized by Public Law (PL) 92-425. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states this situation started with his 11 Feb 05 request to DFAS to obtain cost and facts as to whether he could enroll his wife in the military SBP and CSRS SBP. ...

  • AF | BCMR | CY2013 | BC 2013 01140

    Original file (BC 2013 01140.txt) Auto-classification: Denied

    ________________________________________________________________ _ APPLICANT CONTENDS THAT: Upon his divorce, the Defense Finance and Accounting Service (DFAS) advised him to fax a copy of his original divorce decree and a completed copy of DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage. On 11 January 2013, DFAS received a DD Form 2656-1 from the applicant requesting to change his SBP election, due to divorce, from spouse and child coverage to...

  • AF | BCMR | CY2014 | BC 2014 01848

    Original file (BC 2014 01848.txt) Auto-classification: Denied

    He was provided automatic coverage since the DD Form 2625 was signed and dated after his retirement date. We took notice of the applicant’s complete submission in judging the merits of the case; however, 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. THE BOARD DETERMINES THAT: The applicant be notified the evidence...