AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

JUL  2 7  1998 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03182 

COUNSEL:  Eugene D. Bernstein 
HEARING DESIRED: NO 

APPLICANT' REOUESTS THAT: 

His records be corrected to show he filed a timely election for 
former spouse coverage under the Survivor Benefit Plan  (SBP) to 
comply with his divorce decree and coverage was converted to his 
wife when his former spouse remarried. 

APPLICANT CONTENDS THAT: 

The reasons the applicant believes the records to be  in error or 
unjust and the evidence submitted in support of the appeal are 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. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

- 

The Chief, Retiree Services Branch, HQ AFPC/DPPTR, reviewed the 
application and  states that  changing  spouse coverage  to  former 
spouse coverage must be exercised within the first year following 
divorce. Court-ordered former spouse coverage may be  terminated 
if  the member  obtains an  amended  court  order that  removes the 
requirement to provide former spouse coverage in order to provide 
coverage for a spouse.  Former spouse coverage is suspended  if 
the  former  spouse  remarries  before  age  55  and  costs  cease 
effective  the  first  day  of  the  month  after  the  month  of 
remarriage. Eligibility and premiums are reinstated effective the 
first  day  of  the  month  after  the  date  the  former  spousels 
remarriage terminates. If the member dies while the former spouse 

is  ineligible,  entitlement  is  re-instated  in- the  event  the 
disqualifying  marriage  subsequently  terminates.  Applicant  was 
married  and elected spouse and child coverage, maximum  annuity, 
prior  to  his  1 October  1987  retirement. Although  divorced  on 
27 June  1988  and  the  divorce  decree  required  SBP  coverage  be 
continued, neither party submitted a valid election change during 
the  first  year  following  the  divorce.  Applicant  remarried  on 
21 July  1990.  On  24  July  1995,  the  former  spouse  obtained  a 
Qualified  Domestic  Relations  Order  requiring  the  applicant  to 
comply with  the provision of  the original decree  that  included 
the former spouse must be maintained as the SBP beneficiary. The 
former spouse remarried on 29  July 1995  (prior to attaining age 
55). In December 1997, DFAS suspended spouse coverage retroactive 
to  the  date  of  divorce,  established  the  applicant's current 
spouse as the eligible beneficiary effective 21 July  1991,  and 
refunded premiums of approximately $3,200. To preclude a possible 
injustice, the author recommends partial relief and indicates how 
the record should be corrected to accomplish this. 

A complete copy of the Air Force evaluation is at Exhibit B. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

A complete copy of the Air Force evaluation was forwarded to the 
applicant on  19  March  1998,  for review and  response within  30 
days.  As  of  this date, no response has been  received by  this 
office. 

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  probable  error  or  injustice  to 
warrant partial relief.  As indicated by the Air Force, although 
the applicant made  no  election change during  the required one- 
year time limit following his divorce, there is no evidence that 
he  requested DFAS terminate his  former spouse's coverage.  The 
Air  Force  indicates  the  applicant  is  aware  that,  should  his 
request  be  approved, his  former  spouse's remarriage  will  not 
terminate coverage but will only suspend her eligibility for the 
SBP and his pay will  be  readjusted. The Air  Force also advises 
that he agrees to repay the applicable premiums. We agree that to 
deny the applicant's request for former spouse coverage would be 
to  deny  his  former  spouse  an  asset  awarded  her  by  the  court. 
However, as indicated by the Air Force, there is no basis in law 

permitting spouse coverage on his present wife's behalf absent an 
amendment to the court order which would remove the requirement 
that the former spouse be maintained  as the eligible SBP former 
spouse beneficiary. Therefore, in order to preclude  a possible 
injustice to  applicant's former  spouse, we  agree  with  the Air 
Force's suggested partial  relief  and  recommend  the  applicant's 
records be corrected to the extent indicated 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 28 June 1988, 
he  elected,  under  the  Survivor  Benefit  Plan,  to  chanse  his 
verage 'I 
"spouse and child coverage" to "form 
based  on  full  retired  pay,  naming 
as  the 
former  spouse  beneficiary;  and  former- spouse  coverage  was 
suspended effective 1 August 1995 following her remarriage. 

I 

The following members of the Board considered this application in 
Executive Session on 22  June 1998,  under the provisions of AFI 
36-2603: 

Mr. Henry C. Saunders, Panel Chair 
Mrs. Barbara A. Westgate, Member 
Ms. Ann L. Heidig, Member 

All  members voted  to correct the records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 15 Oct 97, w/atchs. 
Exhibit B.  Letter, HQ 
Exhibit C.  Letter, 

3 

97-03182 

DEPARTMENT OF THE A I R   FORCE 

H E A D Q U A R T E R S  AIR  FORCE PERSONNEL CENTER 

R A N D O L P H  AIR  F O R C E  B A S E  T E X A S  

n-2  MAR  3998 

MEMORANDUM FOR AFBCMR 
FROM:  HQ AFPCIDPPTR 

550 C Street West Ste I 1  
Randolph AFB TX  78150-4713 

SUsJECT:  Application for Correction of Military Records 

Reauested Correction:  The applicant is requesting corrkxtive action to L, ,ow he filed 
a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) to comply 
with his divorce decree and coverage was converted to his wife when his former spouse 
remamed. 

Basis for Request:  The applicant claims he was unaware of the requirement to change 

the SBP beneficiary from spouse to former spouse. 

Backaround: 

a.  A spouse beneficiary loses eligibility to receive an annuity following divorce. 

However, the law provides two mechanisms for changing spouse coverage to former spouse 
coverage.  Both must be exercised within the first year following divorce:  the retiree may file 
an election change, or 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 that the member agreed, or that 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 
(DFAS) of the divorce and continues to pay SBP premiums afterwards, the former spouse is 
not eligible for annuity payments upon the member's death. 

b.  Court-ordered former spouse coverage may be terminated if the member obtains an 

amended court order that removes the requirement to provide former spouse coverage in 
order to provide coverage for a spouse.  Former spouse coverage is suspended if the former 
spouse remarries before age 55, and costs cease effective the first day of the month after the 
month of remarriage.  Etigibility and premiums are reinstated effective the first day of the 
month after the date the former spouse's remarriage terminates.  If the member dies while the 
former spouse is ineligible, entitlement is re-instated in the event the disqualifying marriage 
subsequently terminates. 

Facts:  The member was married and elected spouse and child coverage, maximum 

annuity, prior to his 1 Oct 87 retirement.  The parties divorced 27 Jun 88 and the divorce 
decree required SBP coverage be continued; however, neither the applicant nor his former 
spouse submitted a valid election change during the required time limit.  The member 

97031 82 

remarried 21 Jul90.  On 24 Jul95, the former spouse obtained a Qualified Domestic Relations 
Order requiring Ute applicant to comply with the provision of the original decree that included 
the former spouse must be maintained as the SBP beneficiary.  The former spouse remarried 
on 29 Jul95 (prior to attaining age 55).  In Dec 95, the DFAS - Cleveland Center (DFAS-CL) 
suspended spouse coverage retroactive to the date of divorce, established the member's 
of premiums (subject to the six-year statute of limitations - approximately $3,200). 
current spouse as the eligible beneficiary effective 21 Jul91, and issued the applicant a refund 

- 

Discussion: Although the member made no eledion change during the required one- 
year time limit following divorce, there is no evidence that he requested DFAS terminate his 
former spouse's coverage.  The applicant is aware that if his request is approved, his former 
spouse's remarriage will not terminate coverage, but will suspend her eligibility for the SBP and 
his pay will be readjusted.  The member agrees to repay any premium debt.  To deny the 
applicant's request for former spouse coverage would be to deny his former spouse an asset 
awarded her by the court.  However, there is no basis in law to permit spouse coverage to be 
established on Maureen's behalf absent an amendment to the court order removing the 
requirement that Helen be maintained as the eligible SBP former spouse beneficiary. 

Recommendation:  Although there is no evidence of Air Force error, to preclude a 

possible injustice, we recommend partial relief:  the member's record should be corrected to 
reflect that on 28 Jun 88 he elected to change SBP spouse and child -vera  e to former 
spouse and child coverage based on full retired pay, naming -as 
the 
eligible former spouse beneficiary,  and former spouse coverage was suspended effective 
1 Aug 95 following her remarriage.  Approval should be contingent upon recoupment of any 
applicable premiums. 

@dd 

PAT PEEK, DAFC 
Chief, Retiree Services Branch 
Directorate of  Pers Program Mgmt 

9703 1 82 
. . . . . - . - . 

. 

Office of the Assistant Secretary 

AFBCMR 97-03 182 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

JUL  2 7  t998: 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 
of Military Records and under the authority of Section 1552, Ttle 1 Q, United States Code (70A 
Stat 116), it is directed that: 

ds of the Department of the Air Force relating to 
corrected to show that on 28 June 1988, he elect 

SurvivorBeneht Plan, to chahge his “spous 
coverage” based on full retired pay, naming 
beneficiary; and former spouse coverage 
remarriage. 

Director 
Air Force Review Boards Agency 

W