RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-01334 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His current spouse be declared the beneficiary of his Survivor Benefit Plan (SBP), due to his former spouse’s death. APPLICANT CONTENDS THAT: His former spouse passed away 14 Jun 14 and Defense Finance and Accounting Service (DFAS) refuses to transfer his SBP to his current spouse. He paid in to the SBP for over 30 years and requests the Board declare his current spouse the beneficiary. His Counsel’s letter to the DFAS Office of the General Counsel (OGC), dated 17 Oct 14, is still unanswered, however; through a phone call heard that his request would continue to be denied because federal statute does not specifically permit a new designation after the death of a former spouse. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to documentation submitted by the applicant, he retired from active duty 1 Aug 75. According to the State of Colorado Certificate of Death, submitted by the applicant, his former spouse died on 14 Jun 14. 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) statute 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. The remaining 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-JFBEB/CL recommends disapproval due to laws governing SBP which do not permit a change from former spouse to spouse coverage after the former spouse has died. 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 stated 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 had to have been notified of the change. The date of the order to vacate survivor benefit requirement is 30 Jul 14, which is after the death of his former spouse. A complete copy of the DAFS-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 12 Nov 15 for review and comment within 30 days. The applicant responded stating the National Defense Authorization Act 2015 (FY15 NDAA) resolves the issue in Section 641, Death of Former Spouse Beneficiaries and Subsequent Remarriages under the Survivor Benefit Plan, allowing coverage for his current spouse. In light of this, the Board and DFAS should favorably consider his request. ADDITIONAL AIR FORCE INFORMATION SAF/MRBR provided updated information to the applicant regarding the FY16 NDAA Public Law No. 114-92 § 641, which amended 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 D. 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. 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-2015-01334 was considered: Exhibit A. DD Form 149, dated 26 Mar 15, w/atchs. Exhibit B. Memorandum, DFAS-JFEBE/CL, dated 4 Nov 15 Exhibit C. Letter, Applicant, dated 27 Nov 15. Exhibit D. Electronic Mail, SAF/MRBR, dated 23 Dec 15.