RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-05042
		
						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His Survivor Benefit Plan (SBP) for spouse and child coverage based on full-retired pay be terminated.  

APPLICANT CONTENDS THAT:

As of 1 Nov 16, he is not required to have “former spouse” SBP coverage, and he wants to do away with SBP coverage and any payments to that fund.  A Final Order of Divorce (second wife), issued by the Circuit Court of Fairfax County, VA, dated 18 Apr 16, does not assign SBP to that spouse.  A St. Clair County, Belleville, IL, court order, filed 10 Aug 16, ordered that SBP coverage for his former spouse (first wife) is no longer ordered by the court.  

The applicant’s complete submissions, with attachments, are at Exhibits A and E.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 25 Mar 87. 

On 22 Sep 90, the applicant and his first wife were married.

On 16 Oct 00, the applicant and his first wife were divorced.  The divorce decree ordered him to designate his first wife as his SBP beneficiary with former spouse and child SBP coverage.  

On 11 Apr 03, the applicant married his second wife. 

On 31 Mar 08, the applicant was furnished an honorable discharge, retired effective 1 Apr 08, and was credited with 21 years, and 6 days of active service.

On 18 Apr 16, the applicant and his second wife were divorced.  The divorce decree does not mention/assign SBP.  

On 1 Nov 16, the applicant submitted a letter to the AFBCMR formally withdrawing his request for former spouse SBP coverage, and to “do away with SBP and any payments to that fund” (Exhibit E).    

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force office of primary responsibility (OPR), which are included at Exhibits C and F.

AIR FORCE EVALUATION:

AFPC/DPFFF did not provide a recommendation because of 18 Mar 04 AFBCMR guidance regarding the possibility of two potential SBP beneficiaries.  However, they provided an analysis of the matter in question.  Retiring members are required to submit an SBP election prior to their effective date of retirement.  Absent a valid election, Federal law mandates maximum coverage for all eligible beneficiaries.  If a retiring member is ordered by a court of competent jurisdiction to provide former spouse SBP coverage upon retirement, the former spouse is authorized to request a deemed election be made on his or her behalf within the first year following divorce.  If the former spouse fails to deem an election, the member is not released from the obligation imposed by the court order and must elect former spouse SBP coverage to comply with the terms of their divorce decree, even if remarried at the time of retirement.  

The applicant married his first wife on 22 Sep 90.  The parties divorced on 16 Oct 00, and in the divorce decree the applicant was ordered to designate her as his beneficiary under the SBP with “former spouse and child option and shall select the full amount of his monthly retired pay as his base amount”.  There is no evidence DFAS-CL received a request from the former spouse deeming that an SBP election be made on her behalf during the first year following the date of their divorce.  Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and his 2nd wife were married on 11 Apr 03, and the applicant failed to complete a DD Form 2656, Data for Payment of Retired Personnel, prior to his 1 Apr 08 retirement.  Absent a valid deemed election from his former spouse or a DD Form 2656 and DD Form 2656-1 from the applicant, DFAS-CL established spouse and child SBP coverage based on full-retired pay to comply with the law. 
A complete copy of the AFPC/DPFFF 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 3 May 16 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice.  When a member fails to complete a valid SBP election prior to retirement, coverage is established for all eligible beneficiary (ies) by operation of law; costs and coverage become effective the date the member becomes eligible to receive retired pay.  Former spouse coverage was never established because his former spouse (1st wife) failed to deem an election on her behalf during the first year following their divorce, and the applicant failed to elect former spouse coverage prior to his 1 Apr 08 retirement.  The applicant was married to his second wife and had dependent children when he retired effective 1 Apr 08.  He failed to attend an SBP briefing and complete an election prior to his retirement.  Absent a valid election, DFAS-CL established spouse and child coverage based on full-retired pay to comply with the law.  The applicant and his second wife were divorced on 18 Apr 16, and spouse coverage was suspended effective that date.  Child coverage remains in effect until the youngest child is no longer eligible.  The applicant is currently paying a monthly premium for child only coverage.  They recommend denying the applicant’s request to terminate his current (child only) SBP coverage.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 1 Feb 17 for review and comment within 30 days (Exhibit G).  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 error or injustice.  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 AFPC/DPFFF.  In this respect, we note the applicant is currently paying a monthly premium for child only coverage and SBP coverage should remain in effect until the youngest child is no longer eligible.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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-2015-05042 in Executive Session on 7 Mar 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05042 was considered:

	Exhibit A.  DD Form 149, dated 25 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 31 Mar 16, w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 3 May 16.
	Exhibit E.  Letter, Applicant, dated 1 Nov 16, w/atchs.
	Exhibit F.  Memorandum, AFPC/DPFFF, dated 24 Jan 17.
	Exhibit G.  Letter, SAF/MRBR, dated 1 Feb 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.