RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04233 MEMBER: (DECEASED) COUNSEL: NONE APPLICANT: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her ex-husband’s record be corrected to show that he elected former spouse coverage under the Survivor Benefit Plan (SBP), naming her as beneficiary. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. She recently discovered that upon their divorce, her ex- husband failed to change the SBP election designation from “spouse” to “former spouse” as was required by their divorce agreement. She was informed that the change from “spouse” to “former spouse” should have been accomplished within a year of their divorce. He may not have known that he had to make this change, as he continued the premium deductions from his pay with her as the beneficiary. 2. Upon discovering the failure to change her status from “spouse” to “former spouse” she called the Defense Finance and Accounting Services (DFAS) and asked how to correct the omission. She was told it was too late, as it should have been done within a year of their divorce. She was then instructed to accomplish a DD For 149 and submit to the AFBCMR. She has complied with the requirements of the divorce settlement and should not be penalized for her ex-husband’s omission. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Information submitted by the applicant indicates her ex-husband retired from the Air Force in the grade of Technical Sergeant in November of 1974. On 26 October 2012, the applicant notified SAF/MRBR that her ex- husband died on 4 September 2012 (Exhibit B). AIR FORCE EVALUATION: 1. AFPC/DPFFF recommends approval. DPFFF states the fact that the member did not request SBP coverage be terminated following his divorce indicates he intended for the applicant to remain his SBP beneficiary. 2. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member was not married when he declined SBP coverage prior to his 1 November 1974 retirement. The member and the applicant married on 14 February 1981, and he elected spouse only coverage based on full retired pay under the SBP during the one- year (1 April 1992 to 31 March 1993) open enrollment period authorized by Public Law (PL) 101-189 (29 November 1989). They divorced on 14 January 2010, and the court order held that the applicant should continue as the SBP beneficiary. There is no indication either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. 3. DFAS-CL's retired pay system continues to reflect the applicant's name and date of birth (24 December 1947) as the eligible spouse beneficiary. SBP premiums continued to be deducted from the member's retired pay until 1 Oct 08, when he became "paid-up" under the provisions of PL 105-261 (17 Oct 98). There is no evidence of Air Force error in this case; however, in the interest of justice and absent a competing claimant, they recommend the member's record be corrected to show the decedent elected SBP former spouse only coverage based on full retired pay effective 15 January 2010. The complete AFPC/DPFFF 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 10 December 2012 for review and comment within 30 days (Exhibit D). To date, a response has not been received. ________________________________________________________________ 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. After reviewing the evidence of record, we are persuaded that favorable consideration of the applicant’s request is warranted. Based on the favorable recommendation rendered by the Air Force office of primary responsibility indicating that since the member did not request SBP coverage be terminated upon his divorce from the applicant, he intended for her to remain his SBP beneficiary. Therefore, in view of the above and absent a competing claimant, we recommend the decedent’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 APPLICANT, be corrected to show that on 15 January 2010, he elected former spouse coverage 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 this application in Executive Session on 17 June 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered for AFBCMR Docket Number BC-2012-04233: Exhibit A. DD Form 149 dated 31 August 2012, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 14 November 2012. Exhibit C. Letter, SAF/MRBR, dated 10 December 2012. Panel Chair