RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02112
				INDEX CODE:  137.00

	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be allowed to terminate spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The SBP was added to his retired pay without his knowledge, advice or approval.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant and his first spouse were married on 14 May 1960.  Effective 30 November 1974, he was relieved from this assignment, removed from Reserve status and assigned to the retired reserve section on 1 December 1974, awaiting pay at 60.

Public Law (PL) 95-397, effective 30 September 1978, provided for the RCSBP.  Congress authorized  an open enrollment  period from 1 October 1978 through 30 September 1979, which was later extended to 31 March 1980.  According to the applicant's RCSBP Election Certificate, dated 20 February 1979, he elected spouse and child coverage, Option C, immediate coverage, based on full retired pay.

According to the applicant, he and his first spouse were divorced in the early 1980's and his youngest child lost eligibility in 1988.

The applicant began receiving retired pay effective 13 June 1992 when he reached age 60.  At that time, RCSBP coverage and premiums were suspended.  The RCSBP add-on charges for child coverage continued to be deducted from his retired pay, as required by law.

The applicant and his current spouse were married on 29 August 1998 but he did not advise the Defense Finance and Accounting Service (DFAS) that he did not want to resume coverage on his new spouse.

When DFAS-Cleveland (DFAS-CL) learned of his remarriage in February 2001, RCSBP spouse coverage was reinstated and recovery of premiums retroactive to 1 September 1999 (first anniversary of the remarriage) was commenced by DAFS-CL.  The add-ons charges for child coverage were suspended as a result of his remarriage.

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AIR FORCE EVALUATION:

AFPC/DPPTR states that SBP spouse coverage is suspended when the spouse loses eligibility.  Under Public Law (PL) 99-145 a retiree is allowed not to elect to resume coverage for a newly acquired spouse; however, if the service member fails to take action before the first anniversary of the marriage the new spouse is automatically covered at the previous level.  The premiums will become effective the first day of the thirteenth month and DFAS will recover any cost retroactively.  The applicant's failure to notify DFAS in timely manner to terminate spouse coverage and incurring this debt is unfortunate; however, his spouse became an eligible beneficiary on the first anniversary of their marriage and would have received an annuity after the recovery of the premium debt if the applicant had died before then.  In addition, the Afterburner, News for USAF for Retired Personnel, regularly publishes information to remind the retirees that it is their responsibility to keep their beneficiary information up to date.  To provide the applicant additional time to terminate his SBP coverage would be unfair to other members in similar situations, therefore they recommend denying the applicant’s request.

A complete copy of the evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 7 September 2001, for review and response.  As of this date, no response has been received by this office.

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of probable 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 the recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In this respect, PL 99-145 provides the service member the opportunity to elect to not enroll or resume SBP coverage for a newly acquired spouse.  The service member must notify DFAS of the change in coverage before the first anniversary of the marriage, if not the new spouse will be automatically covered at the previous level.  The applicant had opportunities to obtain information regarding how to make changes in his coverage.  To provide the applicant additional time to terminate his participation in SBP would be unfair to other retirees in similar situations.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 20 November 2001 under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 16 Jul 01, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 31 Aug 01.
	Exhibit C.	Letter, SAF/MIBR, dated 7 Sep 01.