RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02604 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to reinstate Former Spouse Survivor Benefit Plan (SBP) coverage and show that he elected coverage during retirement out-processing in 2001. ________________________________________________________________ APPLICANT CONTENDS THAT: The election of SBP benefits for his former spouse was directed in their 6 November 1995 divorce decree. After his retirement from the Air Force, the Defense Finance Accounting Service (DFAS) enrolled him in SBP and deducted premiums from his retired pay from the date of his retirement through January 2009. At that time, DFAS noticed that they had enrolled him in their database using a default entry of SBP Spouse, not SBP Former Spouse, and unilaterally and summarily canceled his SBP enrollment and refunded most, but not all, of the monies paid. They notified him of this decision by letter dated 10 February 2009, and suggested he contact them if he had questions. He contacted DFAS to ask about the matter and have it corrected to SBP Former Spouse. After trying to convince DFAS, over the course of that first year, to reinstate his SBP he was confused and frustrated and let the matter lie until February 2013. Once again, he talked with DFAS representatives on the phone and they told him he could apply directly to DFAS to have it reinstated. He applied in February and received their letter dated 5 April 2013, informing him they were declining to make a decision in the matter and his only recourse was to apply to the AFBCMR. In support of his request, the applicant submits a personal statement, a copy of his DD Form 2656-1, Survivor Benefit (SBP) Election Statement for Former Spouse Coverage, dated 31 March 2001, copies of pertinent pages from his divorce decree and DFAS correspondence. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to documents extracted from the military personnel database system (MilPDS) the applicant is a former member of the Regular Air Force who served from 9 March 1981 through 31 May 2001 and was retired from active duty effective 1 June 2001, in the grade of Major, O-4. The applicant elected former spouse and child(ren) SBP coverage based on full retired pay on 31 March 2001. The youngest child lost eligibility in April 2007. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: 1. DFAS/CL recommends denial. DFAS/CL states that according to law, they cannot provide former spouse SBP coverage without an election at retirement for former spouse SBP or a deemed election from the former spouse or her attorney in her behalf within one year from the date of the final divorce. 2. The applicant was provided automatic coverage for SBP as DFAS did not receive his election for former spouse and child coverage. The applicant's military retired pay account was established by the branch of service. When the branch initiates a member's retired pay account, all documents relative to the retirement process are retained by the branch of service. When a divorce occurs, either prior to or after retirement, the former spouse has up to one year to deem an SBP election. The applicant and former spouse were divorced on 6 November 1995, so the former spouse had until 6 November 1996, to submit her request, regardless of the member's duty status (active or retired). Since the applicant had never made a prior election, he could elect coverage for his former spouse upon his retirement. They never received the applicant's original forms for retirement. Therefore, when his account was established he was provided automatic SBP coverage for spouse since they did not know that he was divorced. 3. SBP premiums for spouse coverage were deducted from the applicant's retired pay account beginning 1 June 2001 through 31 January 2009. However, they received the DD Form 2656-1 from the former spouse on 1 December 2008, with notification that the applicant and former spouse were divorced on 6 November 1995. According to the final decree of divorce, the applicant was court- ordered to maintain his former spouse as a former spouse beneficiary for SBP. However, since they never received the original retirement paperwork and were unaware of the divorce until they received the correspondence from the former spouse, they cannot implement former spouse SBP coverage at this time. However, if the Board should correct the record to reflect that a deemed election was received from the former spouse within one- year of the divorce; or, that the applicant elected former spouse SBP coverage upon his retirement, they will correct his SBP election to reflect former spouse coverage. Should the Board approve the applicant's request to change SBP spouse coverage to former spouse coverage, they will need to collect the premiums from him. The complete DFAS/CL evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. In further support of his appeal, the applicant reiterates his request for the Board to direct DFAS to reinstate his SBP former spouse benefit. He further states that, given DFAS’ ongoing mischaracterization or misunderstanding of the facts of his case, he hereby expresses his desire to appear before the Board if they deem it warranted to help explain his case. He would like to rebut the characterization of his case and the tone of DFAS’ letter. He never elected “no beneficiary,” DFAS did; and his request is not the “result of divorce,” rather it is the result of an incorrect entry by DFAS in their database. He gives a brief chronology of events and actions to put the facts of his case in proper context. 2. The applicant points out that in paragraph 2 of their letter DFAS states, “therefore, when his account was established he was provided automatic SBP coverage for spouse since we did not know that he was divorced.” In actuality, since DFAS claims they never received the original SBP enrollment form from the Air Force, they had no idea whether he was married, single, or divorced. Without the form, their default action was automatic enrollment in SBP spouse, whether he was married or not. However, the various categories that exist in the DFAS database were not apparent to him; he just knew that they were withholding SBP premiums from his pay. 3. Lastly, the applicant states he submits this rebuttal because he does not want the DFAS letter to give the Board the impression that his former spouse and he came out of nowhere in 2008, seven years after his retirement, and started asking for SBP former spouse benefits. He enrolled in “SBP for former spouse” at his Air Force retirement out-processing in 2001, and DFAS withheld SBP premiums from his retirement pay since the beginning of his retirement. He believed everything was in order regarding the SBP benefit he earned after 20 years of service and had properly applied for via the DD Form 2656-1. The applicant’s complete response, with attachment, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. We took notice of the applicant's complete submission, to include his rebuttal, in judging the merits of the case; however, we do not find he has met his burden of establishing an error or injustice to warrant relief. We note that although the applicant made a valid election for SBP former spouse and child(ren) coverage at the time of his 2001 retirement; his former spouse remarried on 21 May 2000, which rendered her ineligible for SBP annuity while remarried prior to age 55. Where extraordinary circumstances exists that would justify correction of the record, the Board generally seeks to correct the record to prevent an injustice. However, the correction, as requested by the applicant, is not possible since former spouse coverage and premiums are suspended if the former spouse remarries before age 55. Accordingly, in the absence of evidence to the contrary, we find no 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 25 March 2014, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02604 was considered: Exhibit A. DD Form 149 dated 27 May 2013, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, DFAS/CL dated 19 June 2013. Exhibit D. Letter, SAF/MRBR, dated 10 July 2013. Exhibit E. Letter, Applicant, dated 24 July, w/atch. 1