RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-02817
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her records be corrected to reflect she elected to not participate in Survivor Benefit Plan (SBP) coverage prior to her 28 Sep 13 retirement.  

APPLICANT CONTENDS THAT:

Prior to her 28 Sep 13 permanently disability retirement, she filled out a DD Form 2656, Data For Payment of Retired Personnel, electing to “opt out” of SBP, her former spouse signed it, and it was notarized and turned into her base Military Personnel Flight (MPF).  However, the form was lost by the base MPF.  She has been billed SBP premiums from her date of retirement until Defense Finance and Accounting Service – Cleveland (DFAS-CL) discontinued SBP participation on 25 Jun 16, as a result of her 13 Jan 16 divorce.  However, she now has a direct remittance debt as a result of the error through no fault of her own.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 28 Sep 13, the applicant was permanently disability retired with compensable percentage for physical disability of 30 percent and credited with serving 15 years, 8 months, and 14 days of active service.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting relief, indicating sufficient evidence has been presented to demonstrate the existence of error or injustice.  When a member fails to complete a valid election prior to retirement, coverage is established for all eligible beneficiaries by operation of the law.  Title 10 USC, Section 1448(a)(3), requires spouses of married members to concur in writing, prior to the member’s effective date of retirement, with SBP elections that provide less than full spouse coverage.  Since 1 May 08, the Office of the Assistant Secretary of Defense (OASD) requires the Services to have the spouse concurrence statement witnessed by a notary public.  In the event there is an error that is administrative in nature, Title 10 USC, Section 1454, provides AFPC/DPFFF the authority to correct the election after obtaining documentation to confirm the spouse understands the effect of concurring to an SBP election that will not provide the maximum level of coverage.  Internal procedures limit exercising the delegated authority under 1454 to no more than one year after the date the error occurred.  

The applicant was married with dependent children, and was placed on the Permanent Disability Retired List (PDRL) effective 28 Sep 13.  The base SBP counselor provided the applicant an SBP briefing; however, the counselor has no record of briefing the applicant or completing an SBP election prior to that date.  Absent a valid election, DFAS-CL properly established spouse and child coverage based on full retired pay to comply with the law.  In Oct 2013, the applicant’s disability compensation from the Department of Veterans Affairs (DVA) exceeded her retired pay and a direct remittance account to recover SBP monthly costs was established.  The applicant and her husband divorced on 13 Jan 16, and on 10 Feb 16, DFAS-CL received her DD Form 2656-6, SBP Election Change Certificate, to suspend spouse coverage.  DFAS-CL records reflect the applicant discontinued SBP participation effective 25 Jun 16.  The applicant’s former spouse provided a written concurrence statement, in which he acknowledged permanently terminating his entitlement to future SBP protection and payments.  To preclude an injustice, they recommend the applicant’s record be corrected to show on 27 Sep 13, she declined SBP coverage and her husband concurred in her election.

A complete copy of the AFPC/DPFFF 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 1 Feb 17 for review and comment within 30 days (Exhibit D).  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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we agree opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error.  Therefore, we recommend the applicant’s record be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 27 September 2013, she declined Survivor Benefit Plan (SBP) coverage and her spouse concurred in her election.  

The following members of the Board considered AFBCMR Docket Number BC-2016-02817 in Executive Session on 24 Oct 17 under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02817 was considered:

	Exhibit A.  DD Form 149, dated 10 Feb 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 23 Jan 17, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 1 Feb 17.
	
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.