RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2014-01931 

 

COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

 

APPLICANT REQUESTS THAT: 

 

His current spouse be covered under his Survivor Benefit Plan 
(SBP) coverage now that his former spouse has passed away. 

 

 

APPLICANT CONTENDS THAT: 

 

Upon the 2012 death of his former spouse, one of three options 
available to him is to begin SBP coverage for his current spouse; 
however, Defense Finance and Accounting Service (DFAS) personnel 
are not allowing him to do so. When he remarried in 2006, he was 
told he could not carry SBP for two beneficiaries and would have 
to wait [to begin coverage for his current spouse] until either 
his former spouse remarried or died. 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 period, his current spouse was covered under SBP but 
then DFAS cancelled her coverage. He understands and is willing 
to pay back-premiums from the date his former spouse died. 

 

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

 

 

STATEMENT OF FACTS: 

 

On 1 Oct 85, according to information provided by the applicant, 
he retired from the Regular Air Force, and elected SBP-Spouse. 

 

In 1989, according to information provided by the applicant, he 
and his former spouse divorced. He continued providing SBP 
coverage for his former spouse, according to the divorce decree. 

 

In 2006, according to information provided by the applicant, the 
applicant married his current spouse. 


In 2012, according to information provided by the applicant, the 
applicant’s former spouse died. 

 

On 13 May 14, SAF/MRBR requested the applicant complete and return 
the Survivor Benefit Program–Marital Status Affidavit Retiree and 
Survivor Benefit Program–Release Of Benefits. 

 

The remaining relevant facts pertaining to this application are 
contained in the memoranda prepared by the Air Force offices of 
primary responsibility (OPR), which are attached at Exhibits C, D, 
G, and H. 

 

 

AIR FORCE EVALUATION: 

 

AFPC/DPFFF does not provide a recommendation. Until recently, 
after the death of a former spouse, DFAS-CL allowed retirees to 
change former spouse to spouse coverage. However, DFAS-CL 
consulted with the Defense Human Resources Activity (DHRA) Office 
of General Council (OGC) to interpret the meaning of Title 10 USC 
1450(f)(l) as it pertains to this applicant's case. AFPC/DPFFF 
defers to the recommendation of DFAS. 

 

A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. 

 

DFAS-JBJE/CL recommends denial indicating there is no evidence of 
an error or an injustice. Department of Defense (DoD) Office of 
General Counsel (OGC) has previously determined that 10 U.S.C. 
1450(f)(l) does 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, 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 perhaps at the end of the member's life. 
For this reason, the change from former spouse to spouse coverage 
must be made while the former spouse is still living. In the 
applicant’s case, there is no evidence that he sought to change 
the former spouse coverage to provide an annuity to spouse 
coverage before his former spouse died. Accordingly, he is not 
eligible to change his election to cover his current spouse. 

 

The applicant does have the option to elect spouse coverage during 
a future open season enrollment. Occasionally, Congress approves 
an Open Season enrollment period to allow retirees to enroll in 
SBP when they previously were unable to do so. 

 

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

 

 

 


DFAS-JBJE/CL recommends denial indicating there is no evidence of 
an error or an injustice. In follow on communications, the 
applicant states he is eligible to start a new beneficiary, upon 
the death of his former spouse, citing “Section 1448(a)6G.” He 
may be referring to 10 USC 1448(a)(6)(b)(G). “(G)Election of new 
beneficiary upon death of previous beneficiary. (i) Authority for 
election. If the reason for discontinuation in the Plan is the 
death of the beneficiary, the participant in the Plan may elect a 
new beneficiary. Any such beneficiary must be a natural person 
with an insurable interest in the participant. Such an election 
may be made only during the 180-day period beginning on the date 
of the death of the previous beneficiary.” 

 

This section does not apply to the applicant, it only applies to a 
member who elected "natural interest person"(NIP) coverage, not 
spouse coverage [as in the applicant’s case], and elects to 
transfer SBP to from one NIP to another NIP. Further, a spouse 
cannot be a NIP. 

 

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

 

SAF/MRBL does not make a recommendation with regard to the merits 
of the case. SAF/MRBL could not find any court case in support of 
DoD OGC’s interpretation of 10 U.S.C. § 1450(f)(1) that precludes 
a change of beneficiary after the death of a former spouse, nor 
does the plain language of the referenced statute address what 
happens when a former spouse dies before the retiree. However, 
the DFAS position that any such change must occur prior to the 
former spouse’s death, is consistent with the current language in 
the Department of Defense Financial Management Regulation 
(DODFMR). The DODFMR was modified January 2014 to permit a change 
in beneficiary from former spouse to current spouse, only if the 
election is made while the former spouse is still living. The 
applicant first attempted to change to spousal coverage in 2012 
[after the former spouse had died]. Even if the death of the 
former spouse precludes the plan participant from changing his 
beneficiary, the Board could provide relief or to correct the 
record to show a valid election occurred before the death of the 
former spouse. The corrected record would have to show the 
election complied with the requirement to provide a valid 
certified court order, if applicable, or in the case of a written 
agreement not approved by court order, that the former spouse 
provided a signed written agreement to the change in beneficiary. 
Alternatively, the Board could decline to correct the record if it 
determined the applicant has provided no evidence of an error or 
injustice. 

 

A complete copy of the SAF/MRBL evaluation is at Exhibit H. 

 

 

 

 

 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In September of 2014, the applicant contends DFAS is using two 
separate statutes against him to deny coverage he is entitled. He 
is in a catch-22 situation because he can only transfer SBP 
coverage when his former spouse is alive, but cannot do so because 
a) she is no longer living and b) even if she was alive, the 
former spouse SBP coverage is court-ordered. Because he was 
initially granted SBP for his current spouse is evidence he was 
in-fact entitled to cover his current spouse under SBP. Now that 
his coverage has been cancelled, and lengthy delays in resolving 
the situation has made obtaining life insurance at a reasonable 
cost impossible, he believes an injustice has occurred. 

 

In May of 2015, the applicant further asserts his eligibility to 
elect new benefits for his current spouse under Section 1448 (a) & 
(b). He believes the discontinuation of SBP, after being told he 
could transfer the coverage is unfair. 

 

 

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 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 Defense Finance and Accounting Service 
(DFAS) and adopt its rationale as the basis for our conclusion the 
applicant has not been the victim of an error of injustice. While 
we note the comments of SAF/MRBL indicating that it is possible to 
correct the record to reflect that the applicant converted his 
coverage prior to his former spouse’s death, we do not find the 
circumstances at play in this case render the applicant the victim 
of an injustice, irrespective of the initial erroneous 
determination that the applicant’s current spouse was eligible for 
SBP coverage. 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-2014-01931 in Executive Session on 12 Jun 15 under the 
provisions of AFI 36-2603: 

 

 , Vice Chair 

 , Member 

 , Member 

 

The following documentary evidence pertaining AFBCMR Docket Number 
BC-2014-01931 was considered: 

 

 Exhibit A. DD Form 149, dated 15 May 14, w/atchs. 

 Exhibit B. Military Personnel Records 

Exhibit C. Memorandum, AFPC/DPFFF, dated 23 May 14. 

Exhibit D. Memorandum, DFAS-JBJE/CL, dated 20 Aug 14. 

 Exhibit E. Letter, SAF/MRBR, dated 2 Sep 14. 

Exhibit F. Letter, Applicant, dated 25 Sep 14. 

Exhibit G. Memorandum, DFAS-JBJE/CL, dated 30 Oct 14. 

Exhibit H. Memorandum, SAF/MRBL, dated 27 Mar 15 

Exhibit I. Letter, SAF/MRBR, dated 17 Apr 15. 

Exhibit J. Letter, Applicant, dated 5 May 15