RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-01756 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her Survivor Benefit Plan (SBP) be corrected from “child” to “spouse and child” coverage.

APPLICANT CONTENDS THAT:

At the time she elected SBP child coverage (2010), the Department of Defense (DoD) did not recognize her legal same-sex marriage.  When the DoD lifted the ban in 2013 and offered a “ONE-CHANCE” enrollment period, she tried changing her SBP election in August 2013 [sic].  Her submission was denied based on the grounds that she missed the “arbitrary” enrollment period.  The one-time enrollment period was conducted on the website, and was not advertised anywhere else sufficiently for her to know about the enrollment before it expired.  Her appeal was denied and after contacting her senator, she was advised to submit her request to the Air Force Board for Correction of Military Records.

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

STATEMENT OF FACTS:

The applicant initially entered the Air Force Reserve on 16 Dec 71.

On 31 Oct 96, the applicant was relieved from her, then, current assignment and assigned to the Retired Reserve list awaiting pay at age 60 (16 Jan 11), Reserve Order EK-6070.

On 13 Oct 10, the applicant completed an election of child(ren) only SBP coverage annotated on DD Form 2656, Data for Payment of Retired Personnel.

On 14 Jul 11, according to the documents submitted by the applicant, she married her current spouse.

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:

AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice.  On June 2013, the Supreme Court determined that key portions of the Defense of Marriage Act (DOMA) were unconstitutional.  In accordance with the Supreme Court decision, the Office of the Secretary of Defense has stated that a person who becomes eligible to participate under Title 10 USC, Section 1448(a)(1) and is married to a same-sex partner, shall have the SBP program applied as for any other married couple under Title 10 USC, Section 1448.  A person who was not married upon becoming eligible to participate in the Plan, but who married a same-sex partner before 26 Jun 13, shall have one year from 26 Jun 13, to make a spouse election under Title 10 USC, Section 1448(a)(5).  The election must be received on or before 25 Jun 14, or the person shall be prohibited by law from making such election.   

The applicant, a Reservist, was not married, but had an eligible dependent child.  She elected child only SBP coverage based on full retired pay prior to attaining age 60.  Her retired pay commenced on 16 Jan 11, and Defense Finance and Accounting Service –Cleveland Center (DFAS-CL) established the SBP coverage the applicant elected.  The applicant married on 14 Jul 11; however, she failed to submit a valid election within the one-year timeframe, as prescribed by the Office of the Secretary of Defense, to add her spouse to her child only coverage.  Furthermore, the applicant has failed to enroll her spouse in the Defense Enrollment Eligibility Reporting System (DEERS), which is a requirement prior to submitting an SBP election.  

It is the responsibility of each retiree to take timely and appropriate action to ensure their spouses are properly designated for military benefits.  The applicant’s contention that the one-time enrollment period was conducted on the website and was not advertised anywhere else sufficiently is without merit. The December 2013 edition of the Afterburner, News for USAF Retired Personnel, contained an article to advise eligible retirees in same-sex marriages of their SBP options when marrying on or before 26 Jun 13.  The article also encouraged retirees to seek assistance from an SBP Counselor when making an election, and provided a contact number.  The Afterburner was either forwarded to the correspondence address the applicant provided to the finance center or could have also been obtained from the Air Force Retiree website at www.retirees.af.mil.  The website also provides detailed information on the SBP.  In addition, on 12 Dec 13, the DFAS-CL website at www.dfas.mil contained information for enrollment in SBP for same-sex couples.  Had she submitted an election by 25 Jun 14, monthly premiums would have been approximately $90 and SBP costs of about $2,600 would have been deducted from her pay to date.  SBP is similar to commercial life insurance in that an individual must elect to participate during the opportunities provided by the law and pay the associated premiums in order to have coverage.  Absent a valid election within the one-year period, as prescribed by the Office of the Secretary of Defense, coverage for her spouse can only be provided if Congress authorized another open enrollment.  Providing this applicant an additional opportunity to elect SBP coverage would be inequitable to other retirees in similar situations and is not justified by the facts.

A complete copy of the AFPC/DPFFF evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that she missed the open enrollment period in the midst of handling both a military and civilian retirement, two state’s marriage paper filings and a dire illness.  She found out about the open enrollment period after the fact during an idle conversation and never heard of the Afterburner, News for USAF Retired Personnel as she does not open, but recycles all advertisements, bulletins and other such mailings.  A mass e-mail, like she has received from other agencies, with the subject line, “Marriage benefits changed with the DOMA ruling – please go to www.etc”, would have alerted her.  Furthermore, although the OPR stated she failed to enroll her spouse in DEERS, her spouse is enrolled in DEERS and has a dependent identification card.  In support of her response, the applicant provided a personal letter and copies of her DD Form 2656-6, Survivor Benefit Plan Election Change Certificate, dated 18 Jun 15, changing her SBP election from child(ren) only to spouse and child(ren) coverage and civil marriage certificate, dated 14 Jul 11.

A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit E.

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 error or injustice.  We took notice of the applicant's complete submission, to include her rebuttal, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note that should Congress declare an open enrollment period the applicant would have an opportunity to elect coverage.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

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-2016-01756 in Executive Session on 21 Jun 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 21 Apr 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 11 Oct 16, w/atchs.
	Exhibit D.  Letter, AFBCMR, dated 14 Feb 17, w/atch.
	Exhibit E.  Letter, Applicant, dated 9 Mar 17, w/atchs.

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.