RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04943 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. Even though her ex-husband failed to designate her as a former spouse beneficiary on his Survivor Benefit Plan, it was his intention that the benefits be paid to her. They were divorced in February 1998, however, he continued to pay premiums for a spouse and child beneficiaries. Her ex-husband did not remarry until 2011. 2. Upon her ex-husband's death, she made application to the Defense Finance and Accounting Service (DFAS) for SBP benefits and was denied on the basis that her ex-husband did not designate her as a former spouse beneficiary. This may be technically true, but DFAS continued to collect premiums for a spouse at a time when he did not have one. She contends that during this period it was her ex-husband's intent that she be covered, and that DFAS accepted premiums for spousal coverage from 1998 to 2011 on her behalf, as there was no other spouse during that period. Her ex-husband paid the premiums in good faith and with the understanding that the eventual benefit would cover her. In support of her request the applicant submits a personal statement, and copies of her divorce decree with attached child custody and marital dissolution agreement, the member’s retiree account statements, a letter from DFAS, and the member’s death certificate. 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 1998 and died on 20 December 2011. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: 1. AFPC/DPFFF recommends approval. DPFFF states the member did not request coverage for his former spouse be terminated and his willingness to accept a reduction in his retired pay after divorce may be considered to have been an indication of his intent to maintain SBP coverage on the applicant's behalf. To deny the applicant's request would deny her an asset awarded to her by the court. 2. The member and the applicant were married on 14 Feb 76, and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Jun 98 retirement. The parties divorced on 5 Jun 98, and in the Child Custody Marital Dissolution Agreement, incorporated in the divorce decree, the member agreed the applicant would receive survivor benefits from his military retirement. There is no evidence either party submitted a valid election to change spouse to former spouse coverage during the required time following their divorce. The youngest child lost eligibility in Jun 02 due to age. 3. The Defense Enrollment Eligibility Reporting System (DEERS) records show the member married his current spouse on 18 Nov 11, but he did not request that Defense Finance and Accounting Service Cleveland Center (DFAS-CL) establish SBP coverage on her behalf. The member's retired pay records erroneously reflected the applicant's name and date of birth (14 Nov 57) as the eligible spouse beneficiary and SBP premiums continued to be deducted from his retired pay until his 20 Dec 11 death. The member’s current spouse is not eligible to receive an SBP annuity because the member died before the first anniversary of their marriage. 4. There is no evidence of Air Force error, and absent a competing claimant, we recommend the member's record be corrected to reflect that he elected to change SBP spouse to former spouse coverage based on full retired pay and named the applicant as the eligible former spouse beneficiary. Approval should be contingent upon recoupment of any applicable premiums. 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 25 January 2013 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 member’s record 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 6 June 1998, he elected former spouse and child 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 31 July 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered for AFBCMR Docket Number BC-2012-04943: Exhibit A. DD Form 149 dated 5 October 2012, w/atchs. Exhibit C. Letter, AFPC/DPFFF, dated 10 January 2013. Exhibit D. Letter, SAF/MRBR, dated 25 January 2013. Panel Chair