RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04802 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His former spouse coverage under the Survivor Benefit Plan (SBP) be changed to spouse coverage. APPLICANT CONTENDS THAT: Due to the death of his former spouse he should be able to transfer the annuity to his current spouse. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System (MilPDS) the former service member retired/separated from the Air Force on 1 Jul 69. According to the Defense Finance and Accounting Service (DFAS), the former service member had elected former spouse coverage for his first spouse. He remarried on 15 Jan 88. His former spouse passed away on 13 Sep 14. By letter, dated 1 Apr 15, the former service member’s current spouse notified the Board that former service member had passed away on 26 Mar 15 and indicated she wished to continue with the request to transfer the SBP coverage from former spouse coverage to spouse. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial indicating there is no evidence of an error or an injustice. Under the laws governing SBP an election for former spouse coverage terminates any prior coverage held. Furthermore, the law does not permit a change from former spouse to spouse coverage after the former spouse has died. The Department of Defense (DoD) Office of General Counsel (OGC) has 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. 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. The statue has been interpreted to mean that the change from former spouse to spouse coverage must be made while the former spouse is living. There is no evidence the applicant sought to change the former spouse coverage to spouse prior the death of his former spouse. Therefore, the applicant is not eligible to change his SBP coverage from former spouse to spouse. On occasion Congress authorizes an Open Season enrollment period to allow retirees to enroll in SBP. The applicant will have the option to elect spouse coverage during an open enrollment. A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The former service member argues it should not be an issue of whether or not he would incur additional premiums because his SBP premiums have been paid in full. The applicant’s complete response, with attachments, is attached at Exhibit E. 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 an error or injustice. The applicant contends he should be allowed to amend his former spouse SBP coverage to add his current spouse since his former spouse is deceased and his SBP premiums have been paid in full. We took notice of the applicant’s complete submission, to include his rebuttal response, in judging the merits of the case. We note, under the laws governing Survivor Benefit Plan a request to change former spouse coverage to spouse coverage must be done prior to the death of the former spouse. Furthermore, there is no evidence the applicant or his former spouse requested a change from former spouse coverage to spouse coverage prior to his former spouse’s death. Notwithstanding, the applicant may in the future elect SBP for his current spouse during an authorized open enrollment by Congress. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale, as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-04802 in Executive Session on 18 Nov 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04802 was considered: Exhibit A. DD Form 149, dated 17 Nov 14, w/atchs. Exhibit B. Memorandum, DFAS-JFBE-CL, dated 23 Feb 15. Exhibit C. Letter, SAF/MRBR, dated 5 Mar 15. Exhibit D. Letter, Applicant, dated 19 Mar 15, w/atchs. Exhibit E. Letter, Spouse, dated 1 Apr 15, w/atch.