RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04113 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: The former member’s records be corrected to reflect that he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her attorney timely submitted the proper documentation and election of SBP coverage on her behalf to the Defense Finance and Accounting Service (DFAS). DFAS confirmed receipt and indicated the request would be held in abeyance until the former member’s retirement. However, DFAS later notified the applicant that her election was not timely filed as, according to DFAS records, it was received four days after the their system of record reflected that the election was received four days late. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: On 31 October 2010, the member was relieved from active duty and retired, effective 1 November 2010, and was credited with 28 years and 4 days of total active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval contingent upon recovery of all applicable SBP premiums. Title 10, USC, Sections 1448(b)(2) and 1450(f)(3)(A) pertain to a member’s and a former spouse’s responsibilities to elect, or to deem (respectively) SBP coverage when a divorce occurs while the member is on active duty. A member has no opportunity to make an SBP election before out-processing for retirement; however, a former spouse must submit a valid request to DFAS to deem SBP coverage within the first year following divorce. 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. In this case, the applicant and former member were married on 29 December 1983. They divorced on 28 September 2007 and the court ordered the applicant be provided SBP coverage. On 12 September 2008, the applicant’s attorney submitted a SBP election request to DFAS. On 13 February 2009, DFAS acknowledged receipt and indicated the request would stay on file until the member’s retirement. The member retired effective 1 November 2010 and elected child only coverage under the SBP based on full retired pay. However, on 30 September 2011, DFAS informed the applicant that her SBP coverage election was not timely filed. However, to deny the applicant’s request would be to deny her a benefit awarded to her by the court. There is no evidence the applicant or the former member have remarried, as such, there is no competing claimant. A complete copy of the AFPC/DPSIAR 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 16 October 2012 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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. We took notice of the applicant’s complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) that it would be appropriate to recommend granting the requested relief. While DFAS apparently erroneously acknowledged timely receipt of the applicant’s deemed election for former spouse coverage, it appears as though her deemed election was not received by DFAS within one year of the divorce as required by the governing statute. Nevertheless, we believe the applicant and her counsel exercised due diligence in ensuring the deemed election was timely provided to DFAS and believe it would be an injustice to deny the applicant an entitlement awarded to her by the court. Therefore, in view of the fact there is no competing claimant, we believe it would be in the interest of justice to grant the requested relief and correct the records as indicated below. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER MEMBER be corrected to show that on 1 November 2010, former spouse and child coverage was established under the Survivor Benefit Plan (SBP) based on full retired pay, naming the APPLICANT as the former-spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04113 in Executive Session on 7 May 2013, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 August 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 2 October 2012. Exhibit D. Letter, SAF/MRBR, dated 16 October 2012. Panel Chair