RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02601
		INDEX CODE:  137.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

	2.  He be relieved from the debt that occurred from unpaid SBP premiums.
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APPLICANT CONTENDS THAT:

He became aware of the SBP premium debt in Apr 08.  He called the Defense Finance and Accounting Service (DFAS) office and was told the debt was for unpaid premiums for the last 12 years.  He explained he had divorced in 1995 and remarried in 1997.  He requested his former spouse be removed from SBP and stated that his current spouse wished to waive her right to SBP coverage.  He was told he would receive paperwork to complete and return; however, he never received anything.  Later, he was advised to submit his information to DFAS in writing and it would be processed and corrected within 30 days.  When he called for the status, he was told DFAS could do nothing and he needed to contact the SBP section.  The SBP representative informed him that he should have submitted his request in 1997.  He was advised to submit a DD Form 149 for correction of his records.

He can only surmise that his former spouse was removed and his current spouse was added.  He should not have to pay for something he does not want.  He is a 22 year retired and disabled veteran who cannot obtain full time employment.  His retirement is his only source of income.  

In support of the application, he submits his personal statement, a waiver statement from his current spouse, his waiver/remission of indebtedness application, a copy of his marriage record, copies of his retiree account statements, his DD Form 214, a letter from his physician, and an excerpt from his divorce decree.

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

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STATEMENT OF FACTS:

SBP spouse coverage is irrevocable as long as there is an eligible beneficiary, but is suspended if the spouse loses eligibility.  Public Law (PL) 99-145 allows a participant with suspended spouse coverage to elect not to resume coverage for a subsequently acquired spouse.  However, the new spouse will be automatically covered at the previous level on the first anniversary of the marriage if the member takes no action before that date.  Premiums for the coverage become effective the first day of the thirteenth month and DFAS will compute the retroactive costs when evidence of the remarriage becomes a matter of record.  

While married to his former spouse, the retired service member elected spouse and child SBP coverage prior to his 1 Oct 93 retirement.  The parties divorced on 22 Sep 95 and the divorce decree was silent on the SBP.  The finance center received his notification of divorce in Oct 95 and SBP spouse coverage and premiums were suspended.  He remarried on 6 Mar 97, but did not notify the finance center that he wished to decline SBP coverage on his new spouse before their first anniversary.  In Mar 08, DFAS received his designation of beneficiary form, specifically used to identify a retiree’s arrears of retired pay beneficiary vice updating SBP actions.  Upon learning that the member had a wife, the finance center reinstated spouse coverage retroactive to 6 Mar 98 as required by law.  Monthly premiums began to be deducted from his retired pay and the retroactive SBP premium debt (approximately $6,830) began to be recovered.  The youngest child lost eligibility effective Jul 08.

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AIR FORCE EVALUATION:

HQ AFPC/DPSIAR recommends denial.  DPSIAR states the implementing SBP statute ensures that qualified, newly-acquired spouses are afforded the protection of the SBP regardless of the member’s failure or delay in notifying the finance center.  This automatic feature was adjusted by law, but requires a participant to take the appropriate action to prevent coverage from being established.  However, DFAS is obligated to reestablish suspended SBP spouse coverage when notified by a retiree that he or she has remarried.  

DPSIAR opines while the applicant acted in a timely manner when he notified DFAS of his divorce from his first spouse, it is reasonable to expect him to have also informed the finance center of his newly-acquired spouse.  Had he died after the first anniversary of his second marriage, his current spouse would have been entitled to receive $640 after any SBP premium debt had been recovered.  To provide him an additional opportunity to terminate his SBP election would be inequitable to other members in similar situations and is not justified by the facts.

DPSIAR states although there is no basis in law to exempt a participant from paying SBP monthly premiums, the applicant may complete a DD Form 2789, Waiver/Remission of Indebtedness Application, include pertinent documents, and submit the request to the address reflected on the debt notification letter.

The complete DSPIAR evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided a notarized statement from his current spouse waiving her right to SBP spouse coverage dated 15 Sep 08 (Exhibit D).

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of 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 Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 2008, under the provisions of AFI 36-2603:

		XXXXXXXXXX, Chair
		XXXXXXXXXX, Member
		XXXXXXXXXX, Member

The following documentary evidence for AFBCMR Docket Number BC-2008-02601 was considered:

	Exhibit A.  DD Form 149, dated 1 Jul 08, w/atchs.
	Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 6 Aug 08.
	Exhibit C.  Letter, SAF/MRBR dated 29 Aug 08.
	Exhibit D.  Notarized Ltr, Applicant Spouse, dtd 15 Sep 08.

		XXXXXXXXXX
		Chair