RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03164

  						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Survivor Benefit Plan (SBP) coverage be resumed and/or increased for his current spouse after the passing of his former spouse.

APPLICANT CONTENDS THAT:

His former spouse was named as SBP beneficiary in accordance with their divorce decree and died on 7 Apr 11.  He understands that resuming the SBP benefit for his new spouse is permitted upon the death of a previously named beneficiary.  He formally requested the Defense Finance and Accounting Service (DFAS) to resume his SBP benefit for his current spouse yet he has not received a determination of the request to resume/increase the SBP coverage since Aug 11.  He understands that any Board action is contingent on collecting any back premiums.

In support of his request, the applicant provides correspondence with Defense Finance and Accounting Service (DFAS), the death certificate, a marriage certificate, and divorce decree.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 2 Nov 01, according to the 224th Judicial District, Bexar County, Texas, divorce decree, the applicant and his former spouse divorced.  

On 30 Jun 06, the applicant retired from the Air Force and was credited with 27 years, 07 months, and 28 days of active service.  

On 23 May 09, according to the State of Texas, County of Guadalupe marriage certificate, the applicant married his current spouse. 

On 7 Apr 11, according to the Commonwealth of Massachusetts death certificate, his former spouse died.  

Effective 25 Nov 15, the National Defense Authorization Act for Fiscal Year 2016 (FY16 NDAA), Public Law No. 114-92 § 641 amended the Survivor Benefit Plan (SBP) statute to allow a member who had made a former spouse election the ability to cover a subsequent spouse if the former spouse dies.  Currently, DFAS is executing an open season.

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-CL states that the enactment of the SBP amendment in the FY16 NDAA includes a provision in the form of an open season period to accommodate members whose former spouse beneficiaries were already deceased when the legislation was enacted.  DFAS sent a letter to the applicant on 26 Feb 16 notifying him of the open season.  DFAS states that during the open season the member cannot reduce or increase his SBP level of coverage, the coverage must be the same as the previous level.  The statue only addresses being in suspended spouse and child coverage, and subsequently increasing coverage upon a new marriage.  According to their office of General Counsel, this section of law does not apply to changes from former spouse to spouse coverage.  Therefore, the applicant’s current spouse is an eligible SBP beneficiary; however, he cannot increase the level of coverage at this time.  

A complete copy of the DFAS-CL evaluation, with letter, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He reiterates that he attempted to resume/increase coverage after his former spouse died in 2011 and states he has been in discussion with DFAS recently.  He states the DFAS representative seemed to be in agreement that he should have been offered the opportunity to increase coverage at that time (2011).  

In support of his response, the applicant provides copies of correspondence to DFAS required to process his open season request to resume coverage for his current spouse.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  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.  The Defense Finance and Accounting Service has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first completed in order to reinstate SBP coverage for his current spouse.  With regard to increasing the level of SBP coverage during the open season, the Board agrees with the DFAS rationale and therefore finds no basis to recommend granting the relief sought in this regard.

3.  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 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.  In addition, 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 members of the Board considered AFBCMR Docket Number BC-2015-03164 in Executive Session on 28 Jun 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03164 was considered:

	Exhibit A.  DD Form 149, dated 23 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, DFAS-CL, dated 20 May 16, w/atch.
	Exhibit D.  Letter, AFBCMR, dated 23 May 16.
	Exhibit E.  Applicant’s rebuttal, dated 6 Jun 16, w/atchs.