RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05050 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be corrected to show his current spouse as the beneficiary for his Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: He wants his current spouse to be the beneficiary of his SBP as a result of the death of his former spouse, who was his SBP beneficiary in accordance with the final judgment of the dissolution of his marriage to his former spouse. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Aug 75, the applicant retired from the Regular Air Force in the grade of lieutenant colonel. The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force Offices of Primary Responsibility (OPR), which are attached at Exhibits C and D.   AIR FORCE EVALUATION: DFAS recommends denial indicating there is no evidence of an error or an injustice. The applicant elected SBP spouse coverage upon his retirement on 1 Aug 75. Pursuant to the final judgment of the applicant’s dissolution of marriage, 21 Apr 88, he was ordered to continue the SBP, naming his former spouse as the SBP beneficiary. Upon the death of the applicant’s former spouse, he requested his current spouse (married applicant 2 Jun 90) become the SBP beneficiary. Because the laws governing SBP do not expressly address changing former spouse coverage to spouse coverage after the former spouse dies, such a change is not permitted. The Department of Defense (DoD) Office of General Counsel (OGC) has provided prior guidance on this issue, in particular they have previously determined that 10 U.S.C. 1450(f)(1) does not permit a change from former spouse to spouse coverage after the former spouse has died. This determination is based on that allowing such a change would permit a situation where a married member could avoid paying premiums after the death of the former spouse but still receive the benefit of an annuity for his spouse, so long as an election under 10 U.S.C. 1450(f) (1) is ultimately submitted perhaps at the end of the member’s life. The applicant has the option to elect spouse coverage during a future open season enrollment. A complete copy of the DFAS evaluation is at Exhibit C. AFBCMR Legal advisor does not provide a recommendation but describes whether or not this case is legally viable to go to a panel of the Board. They opine that if the DFAS advisory is correct that the death of the former spouse precludes the plan participant (applicant) from changing his beneficiary under 10 U.S.C 1450 (f)(1)(A), such a state of the law would not prevent the Board from taking the case and either providing meaningful relief based on the preponderance of evidence showing an error or injustice, or denying on merits. A complete copy of the AFBCMR Legal advisory is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 15 Jul 14, the applicant provided a copy of his final judgment of dissolution of marriage, dated 21 Apr 88, to show the requirements of the divorce order establishing “former spouse” SBP coverage (Exhibit E). 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 an 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 DFAS and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2013-05050 in Executive Session on 9 Oct 14, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 22 Oct 13, w/atch. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letter, DFAS, dated 18 Mar 14. Exhibit D.  Letter, SAF/MRBR, dated 2 Jul 14. 1 2