ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-04802

							COUNSEL:  NONE
(DECEASED FORMER SERVICE MEMBER)

							HEARING DESIRED:  NO 
(APPLICANT)

APPLICANT REQUESTS THAT:

Her deceased spouse’s Survivor Benefit Plan (SBP) be changed from former spouse to spouse coverage.

STATEMENT OF FACTS:

By, DD Form 149, Application for Correction of Military Record, dated 17 November 2014, the former service member requested his former spouse coverage be changed to spouse coverage.  Due to the death of his former spouse he believed he should be able to transfer the annuity to his current spouse.  Furthermore his SBP premiums were paid in full.  On 18 November 2015, the Board considered and denied the applicant’s request noting under the laws governing SBP a request to change former spouse coverage to spouse coverage must be done prior to the death of the former spouse.  For an accounting of the facts and circumstances surrounding his request, and the rationale for the earlier decision by the Board, see the Record of Proceedings, with Exhibits A through E, at Exhibit F.

By, DD Form 149, dated 12 January 2016, the applicant requests the corrective action to allow her to receive the SBP annuity.  She reiterates that her late husband requested his court ordered former spouse SBP coverage be changed to spouse coverage due to the death of his former spouse, however, he was not allowed to change the SBP coverage due to the laws governing SBP.  She is resubmitting the request.  (Exhibit G).
`

AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval indicating there is no evidence of an error or an injustice.

At the time the former service member requested to change his former spouse coverage to spouse coverage, he could not because it was determined that the change from former spouse to spouse coverage must be made while the former spouse was living.  However, under the Fiscal Year 2016 (FY 16) National Defense Authorization Act (NDAA), the SBP statute was amended to allow a retiree to resume coverage for their current spouse upon the death of the former spouse; therefore, the former service member would have been eligible to submit an application to the Defense Finance and Accounting Service (DFAS) to enroll the applicant as the SBP spouse beneficiary.

DPFFF recommends in the interest of justice the former service member’s record be amended to show he elected to change SBP former spouse to spouse coverage.  

A complete copy of the AFPC/DPFFF evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 August 2016, for review and comment within 30 days (Exhibit I).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

The SAF/MRB Legal Advisor recommends denial indicating that if the AFBCMR granted relief it would be setting a precedent by expanding current spouse eligibility for an entire class of participants beyond Congress’ intent.

The SAF/MRB Legal Advisory reviewed the applicant’s request and consulted with the Defense Finance and Accounting Service (DFAS) Assistant General Counsel and determined that in order for the AFBCMR to grant relief they would have to either change the terms of the divorce, change the service member’s date of separation, the date of his death and/or date he filed an election.  However, changing facts in favor of the applicant would create an inequity to all applicants that were similarly situated.  To correct that inequity, the AFBCMR’s decision in this case would need to be treated as precedent, making the entire class eligible, notwithstanding previous decisions and the statutorily specified election limitations established by Congress.  The circumstances facing the applicant are the same for every SBP participant who previously selected former spouse coverage would have liked to later elect current spouse coverage, and who predeceased the change in the law.  

Based on the above, they recommend the AFBCMR deny relief.  Although the Board could recommend a legally sufficient correction that would effect the desired relief, it would establish a precedent, expanding the current spouse election opportunities beyond the limits provided by Congress in Sections 1450(f)(2) and 1448(b)(7).

A complete copy of the SAF/MRB Legal Advisor’s evaluation is at Exhibit J.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In support of her request, the applicant states Congress changed the law to protect people like her, however, this law has unintentionally left out a small unfortunate number of persons that it was meant to protect.  This is an injustice.

The applicant’s complete response is at Exhibit L.

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.  We took notice of the applicant’s complete submission, to include her rebuttal response, in judging the merits of the case.  We note the recommendation of AFPC/DPFFF; however, we agree with the opinion and recommendation of the SAF/MRB Legal Advisory and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While it is an unfortunate circumstance that the service member passed away before the enactment of the statute to allow him the opportunity to elect spouse coverage for his current spouse, we believe that providing relief in this case would establish a precedent by expanding current spouse election opportunities beyond the limits provided by Congress.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD RECOMMENDS 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 7 March 2017, 21 July 2017, 2 August 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04802 was considered:

	Exhibit F.  Record of Proceedings, dated DD Form 149, dated
  19 Nov 15, w/Exhibits.
	Exhibit G.  DD Form 149, dated 12 Jan 16, w/atchs.
	Exhibit H.  Memorandum, AFPC/DPFFF, dated 3 Jun 16
Exhibit I.  Letter, AFBCMR, dated 12 Aug 16.
	Exhibit J.  Memorandum, SAF/MRB Legal Advisor, dated 
  26 May 17.
Exhibit K.  Letter, AFBCMR, dated 30 May 17.
Exhibit L.  Letter, Applicant, dated 12 Jun 17.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.