RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00005 (DEC) COUNSEL: (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. Her Survivor Benefit Plan (SBP) annuity be changed to reflect that the deceased former service member elected full coverage rather than a reduced level of coverage. 2. Reimbursement of ($1,075.47) debt paid, plus interest. APPLICANT CONTENDS THAT: Her deceased husband’s records reflect SBP based on reduced level of coverage, however, full coverage SBP was being deducted from his retired pay. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 16 Jan 94, the former service member retired from the Air Force Reserve. According to a Defense Finance and Accounting Service (DFAS) letter dated 5 Nov 15, provided by the applicant, at the time of the former service member’s retirement on 16 Jan 94, he was divorced and he voluntarily elected a reduced level of SBP coverage for his previous spouse. Regrettably, due to technician error, the SBP was started at full coverage. The former service member and the applicant were married on 8 Aug 98. On 7 Mar 03, the former service member notified DFAS of his marital status. He requested his former spouse coverage be terminated and spouse coverage be established for his current spouse (the applicant). DFAS responded that the request was past the one year anniversary date of his remarriage and, regrettably, they could not increase the former service member’s reduced, spouse SBP coverage to a full base amount. Per to Title 10, United States Code, Section 1448(a)(6(c), a member who is participating in SBP, but does not have an eligible spouse, may, upon remarriage, elect not to resume coverage, elect to resume coverage at the previous level, or to increase the coverage. The retiree must exercise one of the three options within the first year of marriage. The new spouse would become the eligible beneficiary upon the first anniversary of the marriage and premiums will start at that time. According to information provided by the applicant, on 2 Mar 14, the former service member passed away. On 30 Jul 14, DFAS established the applicant’s SBP annuity account as effective on 2 Mar 14. According to a DFAS letter dated 7 Aug 2014, provided by the applicant, on 1 Aug 14, the applicant was erroneously issued a payment of $4,793.00 (gross pay of $5,041.87, less Federal Income Tax Withholding of $248.87). This payment was based on full SBP coverage and should have been based on the reduced level of SBP coverage. The correct payment should have been $3,966.40. As a result, of the overpayment the applicant has a debt of $1,075.47 and they will begin collection of the debt on 1 Oct 14. The applicant will begin receiving her SBP annuity once the debt has been satisfied. The relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial indicating there is no evidence of an error or an injustice. On 21 Sep 72, SBP was established to allow retired service members an opportunity to provide a portion of their retired pay to their surviving beneficiaries. At the time of his 16 Jan 94, retirement, the former service member was divorced and had not re-married. Although, he did not have a spouse at that time, he elected former spouse SBP coverage. The parties divorce decree was silent on SBP. Therefore, the former service member made a voluntary former spouse election at retirement and not a court ordered former spouse election. Since he elected voluntary former spouse SBP coverage, he can voluntarily elect to no longer cover his former spouse; however, he must be remarried and cover his current spouse. Furthermore, if he voluntarily elected former spouse coverage and remarries, the new spouse can be covered at any time. The former service member did not have to advise DFAS within one-year of his marriage, because the one-year only applies if he wanted to increase or decline coverage for his new spouse. On 7 Mar 03, DFAS received the former member’s request to terminate his former spouse coverage and establish coverage for his new spouse. According to the provisions of Title 10, United States Code (USC), a service member who is participating in the SBP, but does not have an eligible spouse, may, upon remarriage, elect to not resume coverage, elect to resume coverage at the previous level, or to increase the coverage. The retiree must exercise one of the three options within the first year of remarriage. The original SBP election that DFAS has on file indicates the former service member elected former spouse coverage at a reduced rate. However, due to a technician error, when the SBP beneficiary was changed to his current spouse, the technician erroneously changed the coverage to full coverage when it should have remained at a reduced level of coverage. Since the former service member's former spouse election was voluntary, and he informed DFAS on 7 Mar 03, that he wanted to cover his new spouse, she is entitled to the SBP annuity; however, at the reduced base amount not the full base amount. In order to increase the level of coverage, he had to have notified DFAS within one-year of his marriage to his current spouse. Due to the technician error, the former service member did pay for full SBP coverage from 2003 until his death. He could have increased his base amount to full coverage, but he had to have done that within one-year of his marriage. He married the applicant on 8 Aug 98, and did not notify DFAS until 7 Mar 03. A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 11 Jun 15, for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. 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 injustice. The applicant’s requests to receive her SBP spouse annuity at a higher level of coverage and reimbursement of the debt plus interest she incurred as a result of overpayment of the annuity is duly noted. Additionally noted is her contention that she should receive the annuity at the higher rate of coverage because the premiums deducted from her spouse’s pay were for the higher level of coverage. 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 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. The evidence of records reflects the former service member voluntarily elected a reduced level of SBP coverage for his former spouse at the time of his retirement. However, when the SBP beneficiary was changed to the applicant, the technician erroneously changed the coverage to full coverage when it should have remained at the reduced coverage. Based on the laws governing SBP the former service member could have increased the level of coverage but it had to be within one-year of his marriage to the applicant. There is no evidence indicating he elected to increase the level of coverage within one year following their marriage. Therefore, in the absence of 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-2015-00005 in Executive Session on 2 Mar 16 and 10 May 16, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00005 was considered: Exhibit A. DD Form 149, dated 23 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, DFAS-JFBE/CL, dated 14 May 15. Exhibit D. Letter, SAF/MRBR, dated 11 Jun 15.