RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00493
		INDEX NUMBER:  137.03

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  13 August 2005

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APPLICANT REQUESTS THAT:

Corrective action be taken that would allow him to terminate former spouse coverage under the Survivor Benefit Plan (SBP).

In his 26 Apr 04 response to the advisory opinion, applicant requests that his participation in the SBP be terminated in its entirety (Exhibit C).

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APPLICANT CONTENDS THAT:

His SBP election of “former spouse” was based on incorrect wording in his divorce decree, misinformation received from the casualty affairs office at Scott AFB, the USAF Academy’s publication (A Guide to: Military Marriage Dissolution, Separation, Pension Division and DFAS DRO’s), and the Defense Finance and Accounting Service, Cleveland Center (DFAS-CL).  If the correct information had been provided to his former spouse, her SBP selection would have been “none.”

In support of his request, applicant provided a letter from his former spouse’s attorney with a chronology of events surrounding the election of former spouse coverage; copies of his separation agreement and divorce decree; a copy of “A Guide to: Military Marriage Dissolution, Separation, Pension Division and DFAS DRO’s”; DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement For Former Spouse Coverage; and DD Form 2656, Data for Payment of Retired Personnel, executed by the applicant on 28 Oct 2002, wherein he elected spouse only SBP coverage for his current spouse.

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

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STATEMENT OF FACTS:

The following facts were obtained from the Air Force evaluation (Exhibit B):

The applicant and his former spouse were divorced on 28 Dec 01, and the separation agreement, incorporated in the divorce decree, held that the former spouse would have the option of choosing the SBP.  However, the agreement contained an unenforceable SBP provision (i.e., that the former spouse would pay the associated costs).

The applicant married his current spouse on 2 Feb 02.  On 7 Dec 02, DFAS-CL received a signed statement from the applicant’s former spouse, attempting to request a deemed SBP election for full SBP coverage, and a DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), signed by both the applicant and his former spouse.  Since they were received within the first year of their divorce, these documents were erroneously processed as a valid request from the former spouse for a deemed SBP election.  DFAS-CL established former spouse coverage based on the invalid deemed election they received from the member’s former spouse.

Prior to his 1 Feb 03 retirement, the applicant elected spouse only SBP coverage based on full retired pay for his current spouse.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended the Board approve the applicant’s request and correct the record to show he made a valid election for spouse only coverage effective 1 Feb 03.  Approval should be contingent on the applicant providing an amended divorce decree and recoupment of any unpaid premiums.

If a servicemember’s divorce occurs prior to retirement and the divorce decree awards SBP coverage to the former spouse, the former spouse may request a deemed election within the first year following the date the divorce was finalized.  That deemed election request, if valid, is held in abeyance at the Defense Finance and Accounting Service (DFAS) until the member retires.  At the time of the member’s retirement, the member may voluntarily elect former spouse coverage.  If the member fails or refuses to elect SBP coverage for the former spouse, the deemed election is established.  In the event a retiree wishes to terminate court-ordered former spouse coverage, he or she must provide an amended decree, removing the requirement.  In such a case, a remarried member’s eligible spouse becomes the valid spouse beneficiary by operation of law.  

The statement referred to in the guide to military marriage dissolution submitted by the applicant was not prepared nor condoned by any Department of Defense (DoD) or Air Force SBP manager for it is not in compliance with the statute and was subsequently withdrawn from its limited availability.  Although the divorce decree appeared to give the former spouse the option to choose SBP coverage, that provision of the court order was unenforceable by virtue of the language that required the former spouse to be responsible for payment of the SBP cost.  Although the language of the decree cannot and should not be amended without due process, there appears to be sufficient willingness by both parties to release the applicant of the requirement to elect former spouse SBP coverage on his former spouse’s behalf.  However, to date, there is no record that either party sought to have the requirement to provide former spouse SBP coverage amended or rescinded.

A complete copy of the evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the recommendation in the Air Force evaluation stating, in part, that his former spouse desired to end the SBP based upon financial hardship considerations and misleading/confusing counseling.  He was directed by his Military Personnel Flight (MPF) to complete a DD Form 2656, Data for Payment of Retired Personnel, and was erroneously directed to select item “26a,” Spouse Coverage Only.  Upon a later review, it was determined he should have selected item “26e,” Former Spouse Coverage.  He would like to terminate SBP coverage entirely and get a full refund of premiums paid; he does not want to switch coverage to his current spouse.

He complied with the Decree of Dissolution, pertaining to life insurance.  The decree states “Wife shall also have the option of choosing Survivor Benefit Plan (SBP) coverage upon Husband’s retirement from the military….” This was not a court-ordered SBP participation; the court ordered that she have the option to select SBP coverage, which she did.  His attorney advised him not to go back to court to obtain an order simply canceling the SBP provision as he feels they complied with the letter and intent of the original decree.

Applicant’s complete response is at Exhibit C.

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ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPTR states that applicant’s claim of misleading/confusing counseling is without merit because he based his decisions on a pamphlet that was not an approved Department of Defense or Air Force SBP document.  He acknowledged he intended to elect former spouse coverage and that coverage was established upon his retirement.  An SBP election may not be arbitrarily terminated as long as the beneficiary remains eligible.  Therefore, since former spouse coverage was established based on a court agreement, an amended court order removing the SBP requirement must be obtained.

DPPTR stands by their original recommendation that the applicant provide an amended divorce decree, releasing him of the obligation to provide former spouse coverage.  If he does this, then his record could be corrected to reflect former spouse coverage was changed to spouse only coverage based on full retired pay effective the date of the amended divorce decree.

However, if the Board decides to grant relief and show the member declined SBP coverage, approval should be contingent upon the member providing, in addition to the above described court order, a notarized statement from his current wife, concurring in his request and waiving her eligibility to receive SBP payments in the event of the member’s death.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

The advisory writers must have misunderstood the Court’s direction and his intent in establishing SBP coverage for his former spouse.  He does not seek termination of former spouse coverage to simply have it revert to current spouse coverage, as the second advisory opinion reflects in its background statement, as it would be unjust and a financial hardship.

The Court directed the option of SBP; it did not direct SBP.  His attorney recommended he not submit an amended order request, as recommended in the advisory opinion, as no mistake was made on the behalf of the Court or its documents in the first place.  He again feels the advisory opinion is incorrect, as his current spouse never had the option to elect/decline SBP coverage as it was superseded by his former spouse’s election for former spouse coverage.

He calls the Board’s attention to his 29 Aug 02 letter to his former spouse (copy attached), wherein he advised her of the required SBP election, which meets the divorce decree’s intent.  He stated in the first paragraph “…as I will decline coverage if you make no election.”  This along with his current wife’s notarized SBP declination statement, as suggested in the advisory opinion, should clearly support his/their intention of never contracting SBP coverage to benefit his current spouse.

In addition to documents submitted with his initial appeal, applicant provided a copy of his 29 Aug 02 letter to his former spouse, a court Status Conference Order (May 14, 2003), and a notarized statement from his current spouse waiving her entitlement to an SBP annuity.

Applicant’s complete response, with attachments, is at Exhibit F.

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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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  In this respect, we note that the applicant and his former spouse were divorced prior to his retirement from the Air Force.  Their separation agreement, incorporated in the divorce decree, held that his former spouse would have the option of choosing SBP coverage when he retired.  However, it contained an unenforceable provision, i.e., that she would be responsible for the associated premiums.  It appears that prior to requesting that a deemed election be made in her behalf, the former spouse attempted to verify with Air Force and Defense Finance and Accounting Service (DFAS) officials whether she would have to pay the premiums.  She was advised that the military member would be responsible for the premiums.  Based on the information provided, she signed and returned the selection for SBP benefits within the time limit imposed in the divorce decree.  Subsequent to the member’s retirement, he provided his former spouse with a statement outlining the breakdown of his retired pay and the portion she would be receiving, minus the cost for the SBP coverage.  Finding that she was financially unable to pay the SBP premiums, the former spouse attempted to cancel the SBP.  She was advised that she could do it at any time so long as she had a court order stating she had the option to “opt out” and stop the SBP.  She was later told it could not be stopped even with a court order.  In addition, a Base Wing Legal Office publication provided to the former spouse as a guide, albeit an unofficial SBP publication, indicated that a designated or deemed former spouse beneficiary could terminate their designation should he/she feel the need or financial necessity to do so.  Based on the foregoing, we believe the former spouse made her election for survivor coverage based on misleading/confusing guidance with respect to her options regarding a deemed election.  Therefore, we recommend that her designation as a former spouse beneficiary under the SBP be voided.  We note the Air Force office of primary responsibility has recommended that the applicant’s records be corrected to reflect he made a valid election for spouse only coverage at the time of his retirement.  However, after careful review of the evidence provided, it appears the applicant did not intend to participate in the SBP program if his former spouse waived her right to SBP coverage.  In view of this and noting that his current spouse has provided a sworn, notarized statement waiving her entitlement to SBP benefits in the event of the applicant’s death, we believe the records should be corrected to reflect he declined to participate in the SBP program.  Accordingly, we recommend the records be corrected as indicated below.
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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that effective 1 February 2003, he elected to decline Survivor Benefit Plan (SBP) coverage and his spouse concurred with his election.

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The following members of the Board considered AFBCMR Docket Number BC-2004-00493 in Executive Session on 28 June 2005, under the provisions of AFI 36-2603:
All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Jun 2003, w/atchs.
     Exhibit B.  Letter, HQ AFPC/DPPTR, dated 16 Mar 04.
     Exhibit C.  Letter, AFBCMR, dated 13 Apr 04.
     Exhibit D.  Letter, Letter, HQ AFPC/DPPTR, dated 9 Aug 04.
     Exhibit E.  Letter, Applicant, dated 26 Apr 04.
     Exhibit F.  Letter, SAF/MRBR, dated 13 Aug 04.
     Exhibit G.  Letter, Applicant, dated 1 Sep 04, w/atchs.

                                   Panel Chair

AFBCMR BC-2004-00493

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to [APPLICANT], be corrected to show that effective 1 February 2003, he elected to decline Survivor Benefit Plan coverage and his spouse concurred with his election.

		Director
		Air Force Review Boards Agency