RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-01072
INDEX CODE:  137.03
	XXXXXXXXXXXXXXXXX				COUNSEL: NONE

	XXXXXXXXXXXXXX				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His records be corrected to show he terminated spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

Spouse SBP coverage was reinstated without his knowledge or consent.  He sent a letter to rescind his SBP election in February 1989.
 
In support of his application, he provided a copy of his request to the Defense Finance and Accounting Service (DFAS) dated 14 November 2002, with attachments, requesting cancellation of his account retroactive to 8 May 1991; a copy of his disability rating decision from the Department of Veteran Affairs (DVA); two letters from the applicant to AFAFC/RP; a copy of his SBP premium invoice; and a copy of AF Form 1562, SBP Former Spouse Election Change Declaration.  The applicant’s complete submission with attachments is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was relieved from active duty on 31 December 1978 with 26 years and 15 days of service and retired in the grade of master sergeant effective 1 January 1979.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.  

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR is of the opinion that there is no evidence of Air Force error or injustice in this case.  The member’s claim that SBP coverage was established for his second spouse without his knowledge is without merit.  While his original request to provide coverage for her is not retrievable, the history clearly reflects the request was made.  Furthermore, DFAS provided a copy of the applicant’s 8 May 1991 letter to the Denver finance center, in which he unequivocally requested his SBP be changed from his former spouse to his current spouse, as he had previously requested “more than a year ago.”  His second spouse was covered for the duration of their marriage even though the applicant failed to remit the SBP costs for this protection after April 1999.  If the applicant had died prior to their divorce, his second spouse would have received a monthly annuity (approximately $704) after the outstanding SBP premium debt had been recovered.  

SBP spouse coverage is suspended not terminated, when the spouse dies or the parties divorce.  Participants with suspended spouse coverage may permanently terminate spouse coverage before the first anniversary of their re-marriage.  The member must provide written notice of the re-marriage and of his/her wish that suspended spouse coverage not be re-established on the new spouse’s behalf.   Absent a valid request to not re-establish SBP coverage, the new spouse automatically gains eligibility on the first anniversary of the marriage; SBP premiums become effective the following month.  

The applicant elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 January 1979 retirement.  He and his spouse divorced on 31 March 1987.  Denver finance microfiche record entries reflect that on 20 July 1987 the agency processed the member’s request to establish former spouse coverage.  The applicant married his second spouse on 26 November 1988.  Microfiche entries reflect in March 1989, the applicant’s request to change voluntary former spouse coverage to spouse coverage was processed, naming his second spouse as the eligible spouse beneficiary.  Records indicate that the DVA awarded the applicant disability compensation which exceeded his retirement pay in April 1999, so a direct remittance account was established to collect SBP premiums.  The applicant failed to pay monthly SBP premiums and a debt has accrued (currently $3,104).  

Public Law (PL) 105-85, 18 November 1997, authorized members, who were retired more than two years as of 17 May 1998, a one-year opportunity to disenroll from the SBP (17 May 1998-16 May 1999).  Retirees had to complete a DD Form 2656-2, SBP Termination Request, and obtain the beneficiary’s notarized consent.  Disenrollments were effective the first day of the month following the date DFAS received a properly completed termination form postmarked not later than 16 May 1999.  There was no refund of premiums.  There is no evidence the applicant submitted a termination request under PL 105-85.  To provide this applicant an additional opportunity to change his SBP election would be inequitable to other members in similar situations and is not justified by the facts.

The applicant and his second spouse divorced on 9 October 2002 and the divorce degree was silent on the SBP.  In January 2003, DFAS suspended spouse SBP retroactive to the date of the divorce.  
The DPPTR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2 May 2003 for review and comment within 30 days (Exhibit D).  As of this date, this office has received no response. 

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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.  After reviewing the evidence of record, we are not persuaded that the applicant has been the victim of an error or injustice.  Evidence provided indicates the applicant chose to elect spouse SBP coverage in March 1989, changing it from former spouse coverage.  The applicant has not provided any evidence that he submitted a termination request under Public Law 105-85, allowing members a one-year opportunity to disenroll from SBP (17 May 1998 - 16 May 1999).  In addition, the applicant has provided no evidence that would lead us to believe that the SBP counselor provided misleading or inaccurate information at the time of his retirement.  Therefore, in the absence of substantive evidence to the contrary, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Accordingly, 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 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 26 June 2003, under the provisions of AFI 36-2603:

	Panel Chair 
	Member
	Member

The following documentary evidence was considered in connection with AFBCMR Docket No. BC-2003-01072:

	Exhibit A.  DD Form 149, dated 24 Mar 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPTR, dated 1 May 03.
	Exhibit D.  Letter, SAF/MRBR, dated 2 May 03.

									
									Panel Chair