RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02752 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 made an agreement with her to allocate their assets and divide their property as a result of their 9 Apr 2009 divorce. As a part of that agreement, both parties consented to keep each other as beneficiaries on their death benefits. In support of her request, the applicant provides a personal statement, copies of the decedent’s death certificate, informal agreement between the applicant and the decedent, email communiqué, Employee Actuarial Information, DD Form 1173, Identification and Privilege Card, and a letter from her attorney. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval. DPSIAR states the Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and the member were married on 24 Oct 1981. The member elected spouse and child SBP coverage based on full retired pay prior to his 1 Mar 2001 retirement. The parties divorced on 9 Apr 2009; however, there was not a formal separation agreement or division of property settlement, and the divorce decree did not address the SBP. There is no evidence the member submitted a valid election to voluntarily change spouse to former spouse coverage within the first year following their divorce as the law requires. The youngest child lost eligibility due to age effective 1 Jul 2011. Defense Finance and Accounting Service-Cleveland Center (DFAS- CL) records continued to reflect the applicant's name and date of birth as the eligible spouse beneficiary and SBP premiums were deducted from the member's retired pay until his 13 Apr 2012 death. There is no evidence either party remarried, and accordingly there is no competing claimant. 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 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. The member did not request coverage for his former spouse be terminated and the fact that SBP premiums were deducted from his retired pay for over three years following their divorce are indicative of his intent to maintain the applicant as the eligible SBP beneficiary. There is no evidence of Air Force error in this case and absent a competing claimant, DPSIAR recommends the member's record be corrected to reflect on 10 Apr 2009, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums. The complete DPSIAR evaluation is at Exhibit B. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 11 Sep 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 based on full retired pay effective 10 Apr 2009, naming his former spouse as the eligible former spouse 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 10 Apr 2009, he elected former spouse coverage under the SBP, based on full retired pay, naming his former spouse as the eligible beneficiary. _______________________________________________________________ The following members of the Board considered this application in Executive Session on 12 Feb 2013, 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- 2012-02752: Exhibit A. DD Form 149, dated 22 Jun 2012, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 30 Aug 2012. Exhibit C. Letter, SAF/MRBR, dated 11 Sep 2012. Panel Chair AFBCMR BC-2012-02752 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code, it is directed that: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 10 April 2009, he elected former spouse coverage under the Survivor Benefit Plan, based on full retired pay, naming XXXXXXX as the eligible beneficiary. Director Air Force Review Boards Agency