RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01112 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: The Survivor Benefit Program (SBP) beneficiary is changed from his deceased former spouse, to his current spouse. APPLICANT CONTENDS THAT: He married his current spouse on 17 Jul 14 but was required to maintain SBP coverage for his former spouse, whom he divorced on 14 Apr 02. His former spouse passed away 6 Apr 14 and Defense Finance and Accounting Service (DFAS) stopped SBP due to her death. He has been trying to start SBP for his current spouse because the former spouse’s death terminates the court-order. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 29 Apr 03, according to documentation provided by the applicant, a court order, issued by the State of Illinois, declared the applicant and his former spouse divorced. On 17 Jul 04, according to documentation provided by the applicant, a marriage certificate, issued by the State of Illinois, declared the applicant and his current spouse married. On 6 Apr 14, according to documentation provided by the applicant, a certificate of death record, issued by the State of Illinois, declared his former spouse passed away. On 30 Mar 15, the applicant provided a signed and notarized affidavit, which indicates he is currently married. Effective 25 Nov 15, the National Defense Authorization Act for Fiscal Year 2016 (NDAA FY16), Public Law No. 114-92 § 641 amended the Survivor Benefit Plan (SBP) statue to provide a member who had made an election to provide SBP or Reserve Component SBP (RCSBP) coverage for a former spouse the ability to cover a subsequent spouse if the former spouse dies. AIR FORCE EVALUATION: DFAS-JFBEB/CL recommends denial indicating the applicant’s record cannot be changed as requested. The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held. Department of Defense (DoD) Office of General Counsel (OGC) has provided prior guidance on this issue. In general, the laws governing the SBP do not permit a change from former spouse to spouse coverage after the former spouse has died. Because it is not expressly permitted by the SBP statute, such a change is not permitted. IN particular, DoD 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. This is because 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. For the above state reasons, 10 U.S.C. 1450(f)(1) must be interpreted to mean that the change from former spouse to spouse coverage must be made while the former spouse is still living. In the applicant’s case, there is no evidence that he sought to change the former spouse coverage to provide an annuity to his spouse under 10 U.S.C. 1450(f)(1) before his former spouse died. To make such a change, he would have been required to obtain a modification to the court order that required the former spouse election. Additionally, the former spouse would have to have been notified of the change. A complete copy of the DFAS-JFBEB/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 6 Nov 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE INFORMATION SAF/MRBR provided updated information to the applicant regarding the FY16 NDAA Public Law No. 114-92 § 641. This law amends the SBP statute to provide a member who made an election to provide SBP or Reserve Component SBP (RCSBP) coverage for a former spouse, the ability to cover a subsequent spouse if the former spouse dies. DFAS will provide guidance as to how members may elect to cover their current spouse during a one-year open season. A complete copy of the SAF/MRBR electronic mail is at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has not 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 error or injustice. In this respect, we note this Board is the highest administrative level of appeal within the Air Force. As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. This Board has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued. In view of this, we find this application is not ripe for adjudication at this level, as there exists a subordinate level of appeal that has not first been depleted. Therefore, in view of the above, we find no compelling basis to recommend granting the relief sought in this application. 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 that all available avenues of administrative relief have not been exhausted; and the application will only be reconsidered upon submission of documentary evidence indicating that said avenues of administrative relief have been exhausted. The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01112 was considered: Exhibit A. DD Form 149, dated 16 Mar 15, w/atchs. Exhibit B. Applicant, Marital Status Affidavit Response, dated 23 Jun 15, w/atchs. Exhibit C. Memorandum, DFAS-CL, dated 4 Nov 15. Exhibit D. Letter, SAF/MRBR, dated 6 Nov 15, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 23 Dec 15.