RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03101

XXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His record be changed to show he made a timely election for reduced spouse coverage in the amount of $1,200 under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

He completed a DD Form 2656, Data for Retired Pay, on 13 Dec 18 for reduced spouse SBP coverage and his spouse signed the form on the same day.  However, the Notary Public placed their stamp on top of the date of his spouse’s signature making the form illegible.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 16 Feb 02, according to a DD Form 2656, dated 13 Dec 18, the applicant and his spouse were married.

On 13 Dec 18, according to DD Form 2656, the applicant elected Option A (Elect Coverage for Spouse Only) based on reduced retired pay in the amount of $1,200 and his spouse concurred with the decision.  The date signed was covered by the Notary Seal.

On 1 Apr 19, according to Special Order AC-010999, dated 17 Apr 18, the applicant retired from the Regular Air Force.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

10 U.S.C. § 1448(a) (2) (A).  “Participants in the plan.  The Plan applies to the following persons, who shall be participants in the Plan: Standard annuity participants - A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay.

10 U.S.C. § 1448(a)(3)(B).  “A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect (i) not to participate in the Plan; (ii) to provide an annuity for the person’s spouse at less than the maximum level; or (iii) to provide an annuity for a dependent child but not for the person’s spouse.
  
AIR FORCE EVALUATION

AFPC/DPFFF recommends granting the application. There is no evidence of Air Force error in this case; however, to preclude an injustice, they recommend the applicant’s request be approved.  The applicant’s record should be corrected to reflect that on 1 Apr 19, he elected Spouse Only SBP coverage based on $1,200, and his spouse concurred in his election. The applicant should be refunded the excess portion of SBP premiums paid since 1 Apr 19.

The applicant was married with dependent children, and elected Spouse Only SBP coverage based on a reduced base amount prior to his 1 Apr 19 retirement.  On the same date, the spouse’s notarized concurrence was witnessed on the DD Form 2656 by the base Legal Office.  The Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) invalidated the form and established Full Spouse coverage because the notary stamp covers the date the spouse signed her concurrence.  The intent of both the applicant and his spouse was to select the reduced base amount of $1,200 and not the full coverage amount established by DFAS.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Mar 21 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 the victim of an injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

a. On 1 Apr 19, he submitted a timely and effective election for spouse only coverage under the Survivor Benefit Plan, based a reduced level of retired pay of $1,200 and his spouse concurred in his election.

b. He be refunded the excess portion of SBP premiums paid since 1 Apr 19. 

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-2020-03101 in Executive Session on 27 May 21:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 3 Aug 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DPFFF, dated 17 Mar 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 19 Mar 21.

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.