RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03171 COUNSEL: YES HEARING DESIRED: NO APPLICANT REQUESTS THAT: His records be corrected to reflect “spouse coverage” instead of “No Beneficiary” under the Survivor Benefit Plan (SBP), since his former spouse is deceased. APPLICANT CONTENDS THAT: He completely paid over 30 years of SBP premiums and voluntarily provided his former spouse coverage under SBP until her demise on 4 October 2013. He remarried and was advised by the Defense Finance and Accounting Service (DFAS) that in order to make an election for SBP spouse coverage in the event of the death of his former spouse, all he needed to do was to submit a copy of his former spouse’s death certificate along with a copy of his marriage certificate to his current spouse. Upon his former spouse’s demise, he did as instructed; however, he was advised it could not be done. He was further advised by DFAS that he lost the ability to obtain “spouse coverage” when he agreed to elect “former spouse coverage” and he could not add a current spouse for SBP coverage after the death of a former spouse beneficiary. He was further advised that he could have made an election before the death of his former spouse, but that her death terminated former spouse coverage, resulting in him having “no beneficiary”. There was no provision in the law to allow him to change from that status to “spouse coverage”. He fully paid coverage for a survivor annuity at 6.5 percent of his retired pay and it is now worthless since he cannot name a substitute survivor. What he thought was a good deal for retirees and a sound way to protect their families, their survivors, and their loved ones, turned out to be the worst possible deal because in the twilight of his years of retirement, he cannot even provide for his spouse. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System (MilPDS), the applicant retired effective 1 June 1965, in the grade of lieutenant colonel (O-5). According to an Agreed Judgment Entry and Decree of Divorce issued in the Court of Common Pleas, Franklin County, Ohio, Division of Domestic Relations, submitted by the applicant, he and his former spouse were married on 15 July 1949 and the parties divorced on 22 October 1991. According to a marriage record issued in the Probate Court of Ottawa County, Ohio, submitted by the applicant, he and his current spouse were married on 3 July 2010. According to a Certificate of Death issued by the state of Ohio, submitted by the applicant, his former spouse died on 4 October 2013. On 16 December 2013, DFAS notified the applicant that an adjustment would be made in the SBP portion of his retired pay account based the demise of his former spouse. Specifically, the adjustment would be from “former spouse coverage” to “No Beneficiary”, effective 1 April 2013. His SBP account is considered paid-up as of 1 October 2008 and he is no longer required to pay his monthly SBP cost. On 28 Jul 15, the applicant was provided a copy of the Air Force Review Boards Agency legal (SAF/MRBL) opinion pertaining to a similar case. SAF/MRBL could not find any court case in support of DoD OGC’s interpretation of 10 U.S.C., Section 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). If the DFAS advisory is correct that the death of the former spouse precludes the plan participant (applicant) from changing his beneficiary under 10 U.S.C § 1450 (f)(1)(A), such a state of the law would not prevent the Board from considering the case and either providing meaningful relief based on the preponderance of evidence showing an error or injustice, or denying on merits (See Exhibit F). AIR FORCE EVALUATION: DFAS-JBJE/CL indicates according to law, recommendation cannot be made that the applicant’s record be changed as requested. The burden is on the applicant to show that an error or injustice occurred. The applicant elected spouse SBP coverage, effective 21 September 1972. 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 particular, 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. Because it is not expressly permitted by the SBP statute, such a change is not permitted. 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, perhaps at the end of the member’s life. For the above stated reasons, 10  U.S.C. § 1450(f)(1) must be interpreted to mean that the change from former spouse to spouse coverage must be made while the former spouse is still living. In this case, there is no evidence that the applicant sought to change the former spouse coverage to provide an annuity to his spouse under 10 U.S.C. § 1450(f)(1) before his former spouse died. Accordingly, the applicant is not eligible to change his election to cover his current spouse. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant, through counsel, refutes the fact that a change from former spouse SBP coverage to spouse coverage is not expressly permitted. Specifically, a member may change election coverage from former spouse to coverage for a spouse in accordance with the Department of Defense Financial Management Regulation at any time following remarriage. If the election change is requested more than one year from the date of the member’s marriage, then the spouse becomes an eligible beneficiary on the date of the election receipt and the associated premium is effective on the first day of the month following election receipt. DFAS references and seeks to apply the law requiring that a request for change in beneficiary from former spouse to be made prior to the death of a former spouse. Such language was not added to the regulation until January 2014. Retroactive application of this specific language to the detriment of the applicant clearly demonstrates an error or injustice. Furthermore, interpreting 10 U.S.C. § 1450(f)(1) to mean that a change from former spouse coverage to spouse coverage must be done prior to the former spouse’s death is contrary to the plain language of the statute. It states that a “change of election under this subsection to provide an annuity to a spouse instead of a former spouse may be made at any time after the person providing the annuity remarries.” DFAS states that the law must be construed this way so as to prevent a scenario wherein the proper premiums are not collected. The applicant argues that if an issue with the language of a statute arises, rather than construe the statute against the plain language of the statute, a change to the statute should be requested. Also, any argument regarding recoupment of premiums is moot when applied to the applicant’s case, as he has been in “paid up status” for SBP premiums since 2008. Interpreting a statute against the plain language on the basis of an issue that is not even present in this case established another example of error and injustice suffered by the applicant. The applicant further argues if former spouse coverage must be changed to spouse coverage during the former spouse’s lifetime, the retiree is faced with the ultimatum of: petitioning for such a change while the former spouse is on her deathbed, or else forfeiting months and years of substantial SBP premiums that he actually paid. If he had proceeded in the manner now required by DFAS, he would have been forced to petition his former spouse for such a change while she underwent treatment for breast cancer. DFAS fails to address any of the injustices set forth by him, namely the retroactive application of the regulations, the interpretation of the statute against its plain language, the intolerable hypothetical ultimatum which DFAS wishes to implement, the actual forfeiture of tens of thousands of dollars, and the systems’ failure to allow an American war hero to provide for his new spouse in his final years. The applicant’s complete response, 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 an error or injustice. We took notice of the applicant’s complete submission, to include counsel’s rebuttal, in judging the merits of the case; however, we agree with the opinion and recommendation of DFAS and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While we note SAF/MRBL indicates that it is possible to correct the record to reflect the applicant converted his coverage prior to his former spouse’s death, we do not find the circumstances in this case are any different than others who are similarly situated. Regrettably, in view of the above, we find no basis to recommend granting the requested relief. 4.  As a matter of information, we have been recently advised that the NDAA FY 2015 did pass legislation regarding electing SBP for a spouse after the death of a former spouse who was previously covered under SBP. DFAS is currently working with the Office of the Secretary of Defense (P&R), and DFAS Office of General Counsel to finalize the application of policy/guidance and procedures. Once guidance has been finalized, more information will be disseminated to the Retired & Annuitant Pay Operations staff and to the military retiree community. If new laws are passed permitting these types of elections, the applicant may apply for reconsideration. 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-2014-03171 in Executive Session on 18 November 2015 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03171 was considered: Exhibit A.  DD Form 149, dated 24 July 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, DFAS-JBJE/CL, dated 22 October 2014. Exhibit D.  Letter, SAF/MRBR, dated 6 February 2015. Exhibit E.  Letter, Applicant’s Counsel, dated 5 March 2015, w/atchs. Exhibit F.  Letter, AFBCMR, dated 28 July 2015, w/atch. 5