RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04626 XXXXXXX (DECEASED) COUNSEL: NONE APPLICANT: HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: She be entitled to benefits under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE APPLICANT CONTENDS THAT: Because of the hostility in the divorce, she did not find out about the divorce for many months. She was never aware and was not briefed on her entitlement to survivor benefits until recently. In support of her appeal, the applicant provides a personal statement; copies of the decedent’s death certificate and the divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, stating, in part, there is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent's record be corrected to reflect on 1 Feb 94, 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. 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. One of the following actions must be taken 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. The Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and the member were married on 30 Jan 59. The member retired on 1 Aug 68 and elected spouse and child SBP coverage based on full retired pay during the initial SBP open enrollment period authorized by Public Law (PL) 92-425 (21 Sep 72- 20 Mar 74). The youngest child lost eligibility Jan 89. The parties divorced on 31 Jan 94, and the divorce decree was silent on the SBP. There is no evidence the member submitted a valid election to voluntarily change spouse to former spouse SBP coverage within the first year following their divorce as the law requires. 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). DFAS-CL records continued to erroneously reflect the applicant's name as the eligible spouse beneficiary. The member died on 1 Nov 09. There is no evidence either party remarried, and accordingly, there is no competing claimant. Although the member failed to submit an election to establish former spouse coverage, he did not request the applicant's coverage be terminated. His willingness to accept a reduction in his retired pay for over 14 years after his divorce is indicative of his intention to maintain the applicant as the eligible SBP beneficiary. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant provides evidence that she remarried on 14 Feb 95. She states that the divorce left her penniless, after 30 years of marriage and with four sons. In support of the appeal, the applicant provides a personal statement and copies of her marriage certificate. The applicant’s complete response, with attachments, is at Exhibit D. ________________________________________________________________ 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 error or injustice warranting corrective action. Based on the available evidence of record and the applicant’s submission, it appears the decedent and the applicant had divorced prior to his death and a SBP election was not made, and while the provided documentation reflects the applicant remarried at age 56, there is no record that the decedent remarried. Based on our review, it appears while the applicant and the decedent’s divorce decree is silent on SBP entitlements, he continued to make SBP payments with the applicant reflected as the eligible spouse beneficiary. Considering the applicant failed to execute a deemed election within one year of her divorce from the decedent and the SBP was established during the decedent’s marriage to the applicant, the applicant, in our view, is entitled to the SBP benefit. Although the spouse coverage was never converted to former spouse coverage, we believe the decedent’s intent to cover the applicant is supported by the continued payments and the fact the applicant’s name was not removed from the SBP. Therefore, in view of the above and in the interest of justice, we recommend the decedent’s record be corrected 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 issue(s) 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 DECEDENT, be corrected to show that on 1 February 1994, he elected to change his Survivor Benefit Plan (SBP) spouse only coverage to former spouse coverage, based on full retired pay, naming APPLICANT as former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04626 in Executive Session on 31 July 2013, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Sep 12, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 29 Jan 13. Exhibit C. Letter, SAF/MRBR, dated 17 Feb 13. Exhibit D. Letter, Applicant, 26 Feb 13, w/atchs. Panel Chair