RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00777 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His deceased father’s records be corrected to change the Survivor Benefit Program (SBP) beneficiary from his deceased former spouse to his current spouse. APPLICANT CONTENDS THAT: His deceased father’s request to have his current spouse added as the SBP beneficiary was denied. He was told once he provided a copy of his former spouse’s death certificate; he could request a change of beneficiary. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information provided by the deceased former member, his former spouse’s date of death was 28 Feb 14. Effective 25 Nov 15, the National Defense Authorization Act for Fiscal Year 2016 (NDAA FY16), Public Law No. 114-92 § 641 amended the Survivor Benefit Plan (SBP) statute to provide a member who had made an election to provide SBP or Reserve Component SBP (RCSBP) coverage for a former spouse the ability to cover a subsequent spouse if the former spouse dies. On 23 Dec 15, the applicant was provided a summary of the provisions of Public Law No. 114-92 § 641, which amended the SBP statute to provide a member who made an election to provide SBP or Reserve Component SBP (RCSBP) coverage for a former spouse, the ability to cover a subsequent spouse if the former spouse dies. DFAS will provide guidance as to how members may elect to cover their current spouse during a one-year open season. 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: DFAS-CL recommends denial indicating there is no evidence of an error or an injustice. There is no evidence in the deceased former member’s case that he sought to change the former spouse coverage to provide an annuity to his current spouse under 10 U.S.C. 1450(f)(1) before the former spouse died. To make such a change, he would have been required to obtain a modification to the court order that required the former spouse election. Additionally, the former spouse would have to have been notified of the change. Accordingly, the deceased former member, who has passed away on 5 Jun 15 since filing this application, was not eligible to change his SBP election. The laws governing SBP state that an election for former spouse SBP coverage terminates any prior coverage held. 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. 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. 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 state 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. The DFAS-CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 Nov 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 took notice of the deceased former member’s complete submission, including attachments, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the deceased former member has not been the victim of an error or injustice. While we note the Fiscal Year 2016 National Defense Authorization Act contains provisions to allow someone such as the deceased former member to convert former spouse SBP benefits when the former spouse passes away, the noted provision of law was not effective until 25 Nov 15, which, regrettably, was well after the applicant’s passing on 5 Jun 15. Therefore, because the law has no retroactive provisions, and there is no evidence the deceased former member attempted to convert former spouse coverage for his new spouse prior to the passing of the former spouse, we find no basis to conclude the deceased former member was the victim of an error or injustice. 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 documentary evidence pertaining to AFBCMR Docket Number BC-2015-00777 was considered: Exhibit A. DD Form 149, dated 15 Mar 15, w/atchs. Exhibit B. Memorandum, DFAS-CL, dated 5 Nov 15. Exhibit C. Letter, SAF/MRBR, dated 6 Nov 15. Exhibit D. Electronic Mail, SAF/MRBR, dated 23 Dec 15.