RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01017 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be changed to reflect their marriage date as 31 May 73, rather than 29 Sep 73, so that she would be eligible for TRICARE benefits under the 20/20/20 marriage rule. ________________________________________________________________ APPLICANT CONTENDS THAT: She was erroneously updated in the Defense Enrollment Eligibility Reporting System (DEERS) as an eligible former spouse under the 20/20/20 marriage rule (renewable continued benefits) when she should have been a 20/20/15 (one year of medical only). She discovered this error when she reported her remarriage in Jan 13. Had she been properly informed of this error, she would have purchased medical insurance long ago. She received medical benefits for eight years beyond the one- year she was actually eligible for. Based on this error, she is required to reimburse TRICARE for medical costs. In support of her request, the applicant provides a personal statement, copies of her marriage certificate, divorce decree and military dependent identification and privilege card. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 4 May 73, the former member enlisted in the Regular Air Force, and served continuously until 31 May 93, when he was released from active duty after serving 20 years and 27 days. DEERS records reflect the applicant and her former spouse were married on 29 Sep 73, and divorced on 23 Jun 03. The applicant was eligible for former spouse medical benefits for one-year from the date of her divorce, ending on 23 Jun 04. On 28 Jan 13, the applicant remarried. The qualifying criteria for continued benefits as a 20/20/20 former spouse are: 1) 20 years of marriage, 2) 20 years of creditable service for retirement for the sponsor, 3) 20 years overlap of marriage and active service. Overlap of between 15 and 20 years qualifies a former spouse as a 20/20/15 and one year of medical from the date of the divorce. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIZ recommends approval. DPSIZ states that TRICARE does not have a remission of indebtedness process to consider errors made in eligibility calculations or updates when it occurs through no fault of the beneficiary. Changing the marriage date would validate eligibility for TRICARE medical coverage under the Uniformed Services Former Spouses’ Protection Act (USFSPA) and negate any debt that would be established for medical claims made during the period of non-eligibility. The applicant remarried and is not seeking continuation of medical coverage from her date of marriage on 28 Jan 13. She properly reported her remarriage in Jan 13, which prompted the relook at the eligibility data and discovery of the error. DPSIZ states that when qualifying, former spouses receive a beneficiary ID & Privilege Card conveying various benefits including TRICARE medical. Based on the established DEERS record, the applicant was issued ID cards in four-year increments reflecting the medical benefit as opposed to the one- year in which she actually qualified. The applicant received benefits based on an error in determining her eligibility made by a personnel representative nine years ago. This error has caused an injustice to the applicant. Adjusting the marriage date in the DEERS record would validate TRICARE claims processed and preclude a debt that would be established for the medical claims paid between 24 Jun 03 and her remarriage date of 28 Jan 13. The complete DPSIZ evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 6 Apr 13, a copy of the Air Force evaluation was forwarded to the applicant and former member for review and comment within 30 days (Exhibit C & D). As of this date, this office has received no response. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The SAF/MRB Legal Advisor reviewed this application and states, in part, that the Board has the authority to correct the marriage date for the limited purpose of relieving the applicant of medical debts incurred because of her use of TRICARE benefits erroneously provided by the Air Force. However, the Board should adopt the limiting language recommended in the SAF/GCM opinion. The applicant’s true marriage date of 29 Sep 73, leaves her four months shy of qualifying for the medical benefits enjoyed by so- called 20/20/20 former spouses. Because the Air Force erroneously coded her for receipt of such benefits and did not catch the error for nine years, the applicant incurred over $100,000 in medical expenses. As the applicant puts it, “[h]ad I been properly informed of this grave error, I would have purchased medical insurance long ago.” Because this debt arose from an admitted error of the Air Force in wrongly coding the applicant for 20/20/20 benefits, the Board could clearly find that the record contains an injustice that must be removed. If the Board does find injustice in this case, then the simplest way of relieving the debt would be to adjust the marriage date in the military record for the limited purpose of establishing a TRICARE entitlement. This is the remedy sought by the applicant and recommended by AFPC/DPSIZ. Because the applicant has remarried, the entitlement would terminate as of 28 Jan 13, the date of her remarriage. The Board has adjusted marriage dates before. In 2004, SAF/GCM opined that “the Board may correct the marriage date in the military record, provided it clearly sets forth the limited scope of the record correction.” The opinion cited the following language as important in fashioning a limited remedy: “[this correction will] only affect the applicant’s Air Force records for the sole purpose of affording the relief to rectify the injustice in this case and that this correction will have no impact on the applicant’s civil records.” This language, recommended by SAF/GCM, has been validated by the Defense Office of Hearings and Appeals (DOHA), which determined that records corrections by the Secretary, acting through the Board under 10 United States Code § 1552, are final and conclusive. Moreover, such a correction does not infringe on any state’s rights because the effects are deliberately limited in scope: “As long as the AFBCMR does not ask the state to correct the date of the claimant’s marriage in the state’s records, there is no state policy or interest in jeopardy.” The complete SAF/MRB Legal opinion is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: On 3 Dec 12, via electronic mail, the applicant responded and reiterated that she was honest, sincere and forthright in her understanding that she was qualified for the 20/20/20 benefits. In fact, she was totally shocked when the Air Force notified her of their subsequently admitted error. She was not responsible for the error. This would not have happened if she had been informed of her status. She should not be penalized retroactively for this unfortunate error. The applicant’s complete response is at Exhibit H. ________________________________________________________________ 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. After thoroughly reviewing the evidence of record and considering the comments of AFPC/DPSIZ and the SAF/MRB Legal Advisor, we believe that relief is warranted. In this respect, we note that the Air Force erroneously coded the applicant for receipt of the 20/20/20 entitlement, which caused her to incur a debt of over $100,000. In arriving at our decision, we are keenly aware that courts have held that correction boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take steps to grant thorough and fitting relief. Therefore, to rectify the injustice in this case, we recommend that the applicant’s records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to FORMER MEMBER, be corrected (as an exception to policy) to show that he and former spouse were married on 31 May 73 rather than 29 Sep 73, that this correction is of limited scope so as only to affect his military records for the sole purpose of affording the relief to rectify the injustice in this case; and that this correction will have no impact on his civil records. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-01017 in Executive Session on 17 Dec 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Mar 13, w/atchs. Exhibit B. Letter, AFPC/DPSIZ, dated 2 Apr 13. Exhibit C. Letter, SAF/MRBR, dated 6 Apr 13. Exhibit D. Letter, SAF/MRBR, dated 6 Apr 13. Exhibit E. Letter, SAF/MRB Legal Advisor, dated 7 Nov 13, w/atchs. Exhibit F. Letter, SAF/MRBC, dated 7 Nov 13, w/atchs. Exhibit G. Letter, SAF/MRBC, dated 7 Nov 13, w/atchs. Exhibit H. Email, Applicant, dated 3 Dec 13. Panel Chair