RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-03039
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
His records be corrected to show his current spouse as the
Survivor Benefit Plan (SBP) beneficiary.
APPLICANT CONTENDS THAT:
His spouse of 20 years is not covered under his SBP.
The current record is unjust. On 21 Jun 14, he requested that his
SBP be terminated because his former spouse had died.
On 27 Jun 14, he learned that he could have elected his current
spouse to receive SBP coverage and made the election to the
Defense Finance and Accounting Service (DFAS). In a letter dated
15 Jul 14, DFAS indicated they were unable to process his request.
The error was due to his unfamiliarity with laws governing SBP and
this mistake should not prevent his current spouse from receiving
coverage.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 1 Aug 91, the applicant retired in the grade of colonel (O-6).
His marriage certificate issued by the State of West Virginia,
reflects he and his current spouse were married on 28 Aug 93.
A death certificate dated 27 Apr 14, reflects that his former
spouse died on 27 Apr 14.
?
In a letter dated 15 Jul 14, DFAS, advised the applicant they were
unable to process his request for spouse SBP as the laws governing
SBP state that an election for former spouse SBP coverage
terminates any prior coverage held. Therefore, the law did not
permit adding his current spouse onto his SBP coverage.
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. He remarried his current spouse on
28 Aug 93 and his former spouse passed away on 27 Apr 14. He may
elect spouse coverage during a future open season enrollment.
The laws governing SBP state that an election for former spouse
SBP coverage terminates any prior coverage held. The Department
of Defense (DOD) Office of General Counsel (OGC) has provided
prior guidance on this issue. In general, 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. 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. 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
under 10 U.S.C. § 1450(f)(1) is ultimately submitted. For the
above stated reasons, it must be interpreted to mean the change
from former spouse to spouse coverage must be made while the
former spouse is still living. In the applicants case there is
no evidence he sought to change the former spouse coverage to
provide an annuity to his spouse under 10 U.S.C. § 1450(f)(1)
before the death of his former spouse. Accordingly, he is not
eligible to change his election.
The burden is on the applicant to show an error or injustice
occurred. Whether relief is warranted is a matter solely within
the discretion of the Secretary of the Air Force acting through
the AFBCMR. If relief is granted, a change to his record to show
that he made a valid election to change SBP coverage from former
spouse to his spouse under 10 U.S.C. § 1450(f)(1) while his former
spouse was still living would accomplish the result. If the
change is approved, this would require the payment of spouse
premiums commencing upon the date of the change.
A complete copy of the DFAS evaluation is at Exhibit B.
?
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy the Air Force evaluation was forwarded to the applicant on
20 Jan 15 for review and comment within 30 days (Exhibit C). As
of this date, no response has been received by this office.
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 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. After
thoroughly reviewing the evidence of record, and noting the
applicant's contentions, we find no evidence of an error or
injustice. 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. In the absence of evidence to the contrary, we
find no basis to recommend granting the relief sought in this
application.
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-2014-03039 in Executive Session on 6 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 24 Jul 14, w/atchs.
Exhibit B. Memorandum, DFAS-JBJE/CL, dated 2 Dec 14.
Exhibit C. Letter, SAF/MRBR, dated 20 Jan 15.
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