RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03039 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be corrected to show his current spouse as the Survivor Benefit Plan (SBP) beneficiary. APPLICANT CONTENDS THAT: His spouse of 20 years is not covered under his SBP. The current record is unjust. On 21 Jun 14, he requested that his SBP be terminated because his former spouse had died. On 27 Jun 14, he learned that he could have elected his current spouse to receive SBP coverage and made the election to the Defense Finance and Accounting Service (DFAS). In a letter dated 15 Jul 14, DFAS indicated they were unable to process his request. The error was due to his unfamiliarity with laws governing SBP and this mistake should not prevent his current spouse from receiving coverage. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Aug 91, the applicant retired in the grade of colonel (O-6). His marriage certificate issued by the State of West Virginia, reflects he and his current spouse were married on 28 Aug 93. A death certificate dated 27 Apr 14, reflects that his former spouse died on 27 Apr 14. ? In a letter dated 15 Jul 14, DFAS, advised the applicant they were unable to process his request for spouse SBP as the laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held. Therefore, the law did not permit adding his current spouse onto his SBP coverage. AIR FORCE EVALUATION: DFAS-JBJE/CL states according to law they cannot recommend the applicant’s record be changed as requested. The applicant had former spouse SBP coverage. He remarried his current spouse on 28 Aug 93 and his former spouse passed away on 27 Apr 14. He may elect spouse coverage during a future open season enrollment. The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held. The Department of Defense (DOD) Office of General Counsel (OGC) has provided prior guidance on this issue. In general, the laws governing the SBP do 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. DOD OGC has previously determined that 10 U.S.C. § 1450(f)(1) does not permit a change from former spouse to spouse coverage after the former spouse has died. 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 under 10 U.S.C. § 1450(f)(1) is ultimately submitted. For the above stated reasons, it must be interpreted to mean 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 he sought to change the former spouse coverage to provide an annuity to his spouse under 10 U.S.C. § 1450(f)(1) before the death of his former spouse. Accordingly, he is not eligible to change his election. The burden is on the applicant to show an error or injustice occurred. Whether relief is warranted is a matter solely within the discretion of the Secretary of the Air Force acting through the AFBCMR. If relief is granted, a change to his record to show that he made a valid election to change SBP coverage from former spouse to his spouse under 10 U.S.C. § 1450(f)(1) while his former spouse was still living would accomplish the result. If the change is approved, this would require the payment of spouse premiums commencing upon the date of the change. A complete copy of the DFAS evaluation is at Exhibit B. ? APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy the Air Force evaluation was forwarded to the applicant on 20 Jan 15 for review and comment within 30 days (Exhibit C). 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 note that DFAS states that the death of the former spouse precludes the plan participant from changing his beneficiary under 10 U.S.C 1450 (f)(1)(A). Regardless of such a state of the law it does not prevent us from providing meaningful relief based on the preponderance of evidence showing an error or injustice. After thoroughly reviewing the evidence of record, and noting the applicant's contentions, we find no evidence of an error or injustice. Therefore 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 the applicant has failed to sustain his burden of proof that he has been the victim of an error of injustice. 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 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-2014-03039 in Executive Session on 6 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Jul 14, w/atchs. Exhibit B. Memorandum, DFAS-JBJE/CL, dated 2 Dec 14. Exhibit C. Letter, SAF/MRBR, dated 20 Jan 15.