RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-00861

XXXX X. XXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

To change his election of benefits under the Survivor Benefit Plan (SBP).  Specifically, to convert child only coverage to former spouse coverage.

APPLICANT’S CONTENTIONS

He was never made aware of the requirement to appoint his former spouse as a beneficiary.  He was making payments and assumed the benefits would be payable upon his passing.  It would be unfair for his SBP contributions over the years to provide no benefit.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).

On 24 Dec 75, according to the applicant’s affidavit, he and his former spouse were married.

On 26 Apr 96, the applicant elected child only coverage and his spouse concurred.  

On 1 Aug 96, the service member retired from active duty.

On 4 Aug 08, according to the applicant’s evidence, he and his former spouse divorced.  The divorce decree was silent on SBP coverage for his former spouse.  

On 16 Apr 19, the AFBCMR staff sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record: SBP-Marital Status Affidavit (Former Spouse); SBP-Marital Status Affidavit (Retiree); SBP-Release of Benefits Affidavit (Current Spouse); SBP-Release of Benefits Affidavit (Arrears of Pay).  See Exhibit C.  

On 16 Oct 19, the AFBCMR staff received the applicant’s completed affidavits.  See Exhibit D.  

For more information, see the excerpt of the service member’s record at Exhibit B and the advisory at Exhibit E.

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application since there is no evidence of an Air Force error or injustice in this case.  The laws controlling the SBP preclude a married member, who declined spouse coverage at the time of retirement, from providing SBP former spouse coverage following divorce unless Congress specifically authorizes that option during an open enrollment.  Since the applicant bypassed at least three opportunities to provide SBP coverage for his former spouse, approval of his request would provide him an additional opportunity to elect SBP coverage not afforded other retirees similarly situated and is not justified.

The complete advisory opinion is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 8 Jan 20 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-00861 in Executive Session on 20 Aug 20:

Mr. Panel Chair 
Ms. Panel Member
Mr. Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 30 Nov 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: 	Letter, AFBCMR, atchs withheld_ 16 Apr 19.
Exhibit D:  Letter, Applicant, atchs, received 16 Oct 19
Exhibit E:	Advisory opinion, AFPC/DPFFF, atch, dated 30 Oct 19.
Exhibit F:	Notification of advisory, AFBCMR, dated 8 Jan 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.