RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02598 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s (decedent) records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _______________________________________________________________ APPLICANT CONTENDS THAT: The decedent kept her as the SBP beneficiary after their divorce, as reflected on his Retiree Account Statement (RAS). This confirms the decedent intended for her to remain his SBP beneficiary. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: According to the Defense Enrollment Eligibility Reporting System, the applicant and decedent were married on 22 Feb 1967. A person's eligibility to receive a spouse SBP annuity terminates upon divorce. However, the law provides two mechanisms for changing spouse coverage to former spouse coverage. Both must be exercised within the first year following divorce: (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf. In the latter case, the former spouse must provide legal documentation the member agreed, or the court ordered the member, to establish former spouse coverage. If neither the member nor the former spouse requests the election change during the one year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member's death. _______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval. DPSIAR states the decedent elected SBP spouse only coverage based on full retired pay prior to his 1 Jun 1989 retirement. The parties divorced on 9 Sep 2008, and the divorce decree did not address the SBP. There is no evidence the member submitted a valid election to change spouse coverage to former spouse coverage within the first year following their divorce. The information maintained in the retired pay system reflected the applicant's name and date of birth as the eligible spouse beneficiary. Monthly premiums continued to be deducted from the member's retired pay until his 9 Dec 2011 death. There is no indication either party remarried. Despite the member’s failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce. His willingness to accept a reduction in his retired pay for over three years after their divorce shows he intended to maintain SBP coverage on her behalf. There is no evidence of Air Force error in this case; however, absent a competing claimant and to prevent a possible injustice, DPSIAR recommends the member's record be corrected to reflect he elected former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of appropriate retroactive costs. The complete DPSIAR evaluation is at Exhibit B. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 7 Aug 2012, a copy of the Air Force evaluation was forwarded to the member for review and comment within 30 days. To date, a response has not been received (Exhibit C). _______________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. There is no evidence of Air Force error; however, to preclude an injustice, we agree with AFPC/DPSIAR’s recommendation that the member’s records should be corrected to reflect that he made a valid election to change his spouse only coverage to former spouse coverage under the SBP, based on full retired pay effective 8 Sep 2009, naming his former spouse as the eligible beneficiary. Accordingly, we recommend the applicant’s records be corrected as set forth below. _______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to MEMBER, be corrected to show that on 8 Sep 2009, he elected former spouse coverage under the Survivor Benefit Plan (SBP), based on full retired pay, naming his former spouse as the eligible beneficiary. Approval should be contingent upon the recovery of applicable premiums. _______________________________________________________________ The following members of the Board considered this application in Executive Session on 12 Feb 2012, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC- 2012-02598: Exhibit A. DD Form 149, dated 11 Jun 2012, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 25 Jul 2012. Exhibit C. Letter, SAF/MRBR, dated 7 Aug 2012. Panel Chair