RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01931 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His current spouse be covered under his Survivor Benefit Plan (SBP) coverage now that his former spouse has passed away. APPLICANT CONTENDS THAT: Upon the 2012 death of his former spouse, one of three options available to him is to begin SBP coverage for his current spouse; however, Defense Finance and Accounting Service (DFAS) personnel are not allowing him to do so. When he remarried in 2006, he was told he could not carry SBP for two beneficiaries and would have to wait [to begin coverage for his current spouse] until either his former spouse remarried or died. When his former spouse died, he has letters from DFAS informing him, “when there is no eligible spouse beneficiary (which he believes is the case because his former spouse is not alive to be a beneficiary), the law provides the following options (1) Resume coverage with annuity and cost amounts increased by applicable cost-of-living increases; (2) Increase coverage up to and including your full retired pay; or, (3) Elect not to have the spouse portion of coverage resumed.” For a brief period, his current spouse was covered under SBP but then DFAS cancelled her coverage. He understands and is willing to pay back-premiums from the date his former spouse died. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Oct 85, according to information provided by the applicant, he retired from the Regular Air Force, and elected SBP-Spouse. In 1989, according to information provided by the applicant, he and his former spouse divorced. He continued providing SBP coverage for his former spouse, according to the divorce decree. In 2006, according to information provided by the applicant, the applicant married his current spouse. In 2012, according to information provided by the applicant, the applicant’s former spouse died. On 13 May 14, SAF/MRBR requested the applicant complete and return the Survivor Benefit Program–Marital Status Affidavit Retiree and Survivor Benefit Program–Release Of Benefits. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, G, and H. AIR FORCE EVALUATION: AFPC/DPFFF does not provide a recommendation. Until recently, after the death of a former spouse, DFAS-CL allowed retirees to change former spouse to spouse coverage. However, DFAS-CL consulted with the Defense Human Resources Activity (DHRA) Office of General Council (OGC) to interpret the meaning of Title 10 USC 1450(f)(l) as it pertains to this applicant's case. AFPC/DPFFF defers to the recommendation of DFAS. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. DFAS-JBJE/CL recommends denial indicating there is no evidence of an error or an injustice. Department of Defense (DoD) Office of General Counsel (OGC) has previously determined that 10 U.S.C. 1450(f)(l) does not permit a change from former spouse to spouse coverage after the former spouse has died. Because it is not expressly permitted by the SBP statute, such a change is not permitted. In particular, 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 is ultimately submitted perhaps at the end of the member's life. For this reason, 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 spouse coverage before his former spouse died. Accordingly, he is not eligible to change his election to cover his current spouse. The applicant does have the option to elect spouse coverage during a future open season enrollment. Occasionally, Congress approves an Open Season enrollment period to allow retirees to enroll in SBP when they previously were unable to do so. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit D. DFAS-JBJE/CL recommends denial indicating there is no evidence of an error or an injustice. In follow on communications, the applicant states he is eligible to start a new beneficiary, upon the death of his former spouse, citing “Section 1448(a)6G.” He may be referring to 10 USC 1448(a)(6)(b)(G). “(G)Election of new beneficiary upon death of previous beneficiary. (i) Authority for election. If the reason for discontinuation in the Plan is the death of the beneficiary, the participant in the Plan may elect a new beneficiary. Any such beneficiary must be a natural person with an insurable interest in the participant. Such an election may be made only during the 180-day period beginning on the date of the death of the previous beneficiary.” This section does not apply to the applicant, it only applies to a member who elected "natural interest person"(NIP) coverage, not spouse coverage [as in the applicant’s case], and elects to transfer SBP to from one NIP to another NIP. Further, a spouse cannot be a NIP. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit G. SAF/MRBL does not make a recommendation with regard to the merits of the case. SAF/MRBL could not find any court case in support of DoD OGC’s interpretation of 10 U.S.C. § 1450(f)(1) that precludes a change of beneficiary after the death of a former spouse, nor does the plain language of the referenced statute address what happens when a former spouse dies before the retiree. However, the DFAS position that any such change must occur prior to the former spouse’s death, is consistent with the current language in the Department of Defense Financial Management Regulation (DODFMR). The DODFMR was modified January 2014 to permit a change in beneficiary from former spouse to current spouse, only if the election is made while the former spouse is still living. The applicant first attempted to change to spousal coverage in 2012 [after the former spouse had died]. Even if the death of the former spouse precludes the plan participant from changing his beneficiary, the Board could provide relief or to correct the record to show a valid election occurred before the death of the former spouse. The corrected record would have to show the election complied with the requirement to provide a valid certified court order, if applicable, or in the case of a written agreement not approved by court order, that the former spouse provided a signed written agreement to the change in beneficiary. Alternatively, the Board could decline to correct the record if it determined the applicant has provided no evidence of an error or injustice. A complete copy of the SAF/MRBL evaluation is at Exhibit H. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In September of 2014, the applicant contends DFAS is using two separate statutes against him to deny coverage he is entitled. He is in a catch-22 situation because he can only transfer SBP coverage when his former spouse is alive, but cannot do so because a) she is no longer living and b) even if she was alive, the former spouse SBP coverage is court-ordered. Because he was initially granted SBP for his current spouse is evidence he was in-fact entitled to cover his current spouse under SBP. Now that his coverage has been cancelled, and lengthy delays in resolving the situation has made obtaining life insurance at a reasonable cost impossible, he believes an injustice has occurred. In May of 2015, the applicant further asserts his eligibility to elect new benefits for his current spouse under Section 1448 (a) & (b). He believes the discontinuation of SBP, after being told he could transfer the coverage is unfair. 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 the Defense Finance and Accounting Service (DFAS) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While we note the comments of SAF/MRBL indicating that it is possible to correct the record to reflect that the applicant converted his coverage prior to his former spouse’s death, we do not find the circumstances at play in this case render the applicant the victim of an injustice, irrespective of the initial erroneous determination that the applicant’s current spouse was eligible for SBP coverage. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-01931 in Executive Session on 12 Jun 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01931 was considered: Exhibit A. DD Form 149, dated 15 May 14, w/atchs. Exhibit B. Military Personnel Records Exhibit C. Memorandum, AFPC/DPFFF, dated 23 May 14. Exhibit D. Memorandum, DFAS-JBJE/CL, dated 20 Aug 14. Exhibit E. Letter, SAF/MRBR, dated 2 Sep 14. Exhibit F. Letter, Applicant, dated 25 Sep 14. Exhibit G. Memorandum, DFAS-JBJE/CL, dated 30 Oct 14. Exhibit H. Memorandum, SAF/MRBL, dated 27 Mar 15 Exhibit I. Letter, SAF/MRBR, dated 17 Apr 15. Exhibit J. Letter, Applicant, dated 5 May 15