RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04614 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: He be reimbursed the Survivor Benefit Plan (SBP) premiums for former spouse coverage withheld from his retirement pay for the period of August through December 2013. APPLICANT CONTENDS THAT: The amount of $2,140.05 was incorrectly withheld from his retirement pay for former spouse SBP coverage. He was given incorrect information twice from the Defense Finance and Accounting Service (DFAS) on how to stop his SBP. He requests the Board direct DFAS to refund him. The applicant through counsel states he and his former spouse divorced on 26 July 2013. Both the divorce decree and the qualified domestic relations order entered by the court state that his former spouse not be designated a former spouse beneficiary of his SBP. DFAS improperly advised him to file a DD Form 2656-1, SBP Election Statement for Former Spouse Coverage, to stop the SBP. This established former spouse SBP rather than stop the SBP. He was also advised that he did not have to attach a copy of the divorce decree as he was within two years of retirement; however, in October 2013 he was asked to produce the divorce decree. Rather than verify the obvious, DFAS processed the form and established SBP coverage for his former spouse contrary to the court order. He contacted DFAS again when he became aware that SBP premiums were still being withheld. He was then directed to fill out DD Form 2656-6, SBP Election Change Certificate, to change the original incorrect request. The person at DFAS even filled out the form for him and mailed it to him so no mistake could be made. Both he and his former spouse signed and submitted the form requesting coverage be stopped per the court order. However, DFAS informed him in a letter dated 27 January 2014 that inaccurately stated he could never change his original election on the DD Form 2656-1 until he remarried. Upon researching his options, he believed he was entitled to stop SBP and submitted a DD Form 2656-2, SBP Termination Request. He then received the exact same letter dated 27 January 2014 stating he could not stop SBP. In April 2014, DFAS informed his Congressman that they had provided inaccurate information in their January 2014 letter stating he could not change his election. Consequently, DFAS changed the SBP election effective 1 January 2014 to child only. However, they indicated that only the AFBCMR could restore the pay that had been withheld from August to December 2013. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant was retired on 1 October 2011 in the grade of colonel (O-6). The parties divorced on 26 July 2013. The Agreed Final Decree of Divorce, Number 2013-CI-06014, issued in the District Court, 407th Judicial District, Bexar County, TX ordered that the applicant’s former spouse not be designated as a former spouse beneficiary of his SBP. In a letter dated 7 April 2014, DFAS advised the applicant’s Congressman that because he voluntarily elected former spouse and child SBP coverage on the DD Form 2656-1 submitted in August 2013 and it was not required by the parties’ divorce decree, he may elect to change his SBP coverage to child only coverage at any time under 10 U.S.C. § 1450(f)(1). Therefore, the DD Form 2656-6 he submitted on 30 December 2013 should have been honored. DFAS would correct the change retroactive to 1 January 2014 and adjust the SBP premiums accordingly. However, based on the DD Form 2656-1 he submitted in August 2013, signed by both he and his former spouse, they were legally obligated to honor the former spouse SBP election as they would have no reason to challenge the voluntary election despite the terms of their 26 July 2013 divorce decree. DFAS advised they were unable to change his military retired pay account or refund SBP premiums for the former spouse coverage prior to 1 January 2014 without authorization from the AFBCMR and advised the applicant petition the AFBCMR for the SBP premiums collected for the former spouse coverage from August through December 2013. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends approval of the request that his SBP premiums withheld for the period of August through December 2013 for former spouse SBP coverage be refunded. The applicant was advised by DFAS that he may petition the AFBCMR to correct his military retirement records to reflect he never intended to elect former spouse SBP coverage, that the error was due to erroneous information he received from DFAS and that his intention was to remove his spouse SBP coverage upon his divorce. DFAS determined the 27 January 2014 letter was incorrect regarding the irrevocability of the former spouse SBP election. He voluntarily elected former spouse and child SBP coverage on the DD Form 2656-1 submitted in August 2013 and it was not required by the parties’ divorce decree; subsequently, he may elect to change his SBP coverage to child only coverage at any time In Accordance With (IAW) 10 U.S.C. 1450 § (f)(1). Therefore, the DD Form 2656-6 that he submitted on 30 December 2013 should have been honored and his former spouse and child coverage should have been changed to child only coverage. His SBP coverage was corrected to reflect the change retroactive to 1 January 2014. The SBP premiums collected for the former spouse coverage from August through December 2013 cannot be refunded as during this period he did have a valid former spouse election. DFAS is unable to change his military retired pay account or refund SBP premiums for former spouse coverage prior to 1 January 2014 without authorization from the AFBCMR. A complete copy of the DFAS-CL evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 9 April 2015, the applicant through counsel states he concurs with the advisory. The applicant’s complete submission is at Exhibit D. 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 an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Therefore, we recommend 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 the APPLICANT be corrected to show that he did not submit DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, dated 5 August 2013 and he is entitled to be refunded the Survivor Benefit Plan (SBP) former spouse coverage premiums withheld from his retirement pay for the period of August through December 2013. The following members of the Board considered AFBCMR Docket Number BC-2014-04614 in Executive Session on 6 May 2015 under the provisions of AFI 36-2603: , Vice 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 November 2014, w/atchs. Exhibit B. Memorandum, DFAS-JFBE/CL, dated 13 March 2015. Exhibit C. Letter, SAF/MRBR, dated 25 March 2015. Exhibit D. Letter, Counsel, dated 9 April 2015.