RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05676 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated the beneficiary for her former spouse’s Survivor’s Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her former spouse agreed that she would remain the beneficiary of the SBP per their divorce decree. She discovered upon his death on 10 Nov 13, that the required paperwork designating her as the SBP beneficiary was not completed within one year of the divorce. The SBP premiums were still paid. In support of her request, she provides copies of the death and marriage certificates, divorce decree, and DD Form 214, Certificate of Release or Discharge from Active Duty. The applicant’s complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: According to Application Number 18667, Marriage Record Florida, the parties were married on 4 Jun 76. According to the Final Judgment of Dissolution of Marriage, case number 09-DR-952, issued by the Circuit Court of the First Judicial Circuit in and for Walton County, Florida, the parties were divorced on 19 Feb 10. According to a death certificate, state file number 101 2013- 40935, issued by Alabama Center for Health Statistics, the applicant died on 10 Nov 13. He was not married at the time of his death. In an e-mail dated 14 Jan 15, DFAS-CL advised that there was a refund of SBP cost issued for the total amount of $8441.66 for the period of premiums paid from 1 Mar 10 through 31 Oct 13. The former spouse received $3939.64 of the SBP credit and the decedent’s son received $4502.02. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. As background, 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. Despite the decedent’s failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce, indicative of his intent for her to remain eligible for his SBP. To deny the applicant’s request would be to deny an asset awarded to her by the court. Absent a competing claimant, DPFFF recommends the service member’s record be corrected to reflect on 20 Feb 10, the decedent submitted a valid election for former spouse coverage based on full retired pay naming the applicant as the eligible beneficiary. Approval should be contingent upon recovery of any applicable premiums. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 Mar 14, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. ________________________________________________________________ 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 warranting relief. We note the Office of Primary Responsibility (OPR) states that absent a competing claimant, they recommend granting the requested relief. As such, we find the death certificate provided by the applicant sufficient to conclude that the decedent was not married at the time of his death. Therefore, we agree with the recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. Accordingly, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to DECEDENT be corrected to show that on 20 Feb 10, he elected to change his SBP spouse coverage to former spouse coverage based on full retired pay naming the APPLICANT as the former spouse beneficiary, contingent upon recoupment of any applicable premiums. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-05676 in Executive Session on 9 Oct 14, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Dec 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 3 Mar 14. Exhibit C. Letter, SAF/MRBR, dated 21 Mar 14.