RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-03404
INDEX CODE:137.00
COUNSEL: None
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he elected former spouse coverage
under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
His record reflects spouse coverage, when in fact based on his divorce
decree his records should reflect former spouse coverage.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and G. were married on 1 August 1953. The applicant was
retired for a disability on 3 July 1971. The applicant elected spouse
only SBP coverage based on a reduced level of retired pay during the
plan’s initial open enrollment period (21 September 1972 through 20
March 1974). He and G. were divorced on 26 March 1985 and the divorce
decree ordered that G. be the SBP beneficiary. There is no indication
in the records that either the applicant or G. requested an election
to change the SBP coverage from spouse to former spouse. The
applicant married P. on 16 May 1991. There is no indication the
applicant notified the Defense Finance and Accounting Service (DFAS)
of the change in his marital status or requested an election on his
current wife’s behalf.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states that a spouse's eligibility as an SBP beneficiary
terminates upon divorce. There are two mechanisms
provided by law for changing SBP coverage from spouse to former
spouse, and both must be exercised within the first year following the
divorce. The servicemember can file an election change or the former
spouse can request that the change be made on their behalf. The
former spouse upon requesting the change must submit legal
documentation that the servicemember agreed to or that the court
ordered the servicemember to establish former spouse coverage. If an
election is not made during the one-year eligibility period, former
spouse coverage may not be established thereafter.
DPPTR on 14 October 2003, requested that the applicant provide a
completed DD Form 2656-1, Survivor Benefit Plan (SBP) Election
Statement for Former Spouse Coverage. The applicant, as of the date
of the advisory opinion, had not responded.
DPPTR recommends if the applicant submits the required documentation,
then it would be appropriate to correct his records to reflect he
elected to change his SBP coverage from spouse to former spouse based
on a reduced level of retired pay. On 9 December 2003, a completed DD
Form 2656-1 was received.
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 December 2003, for review and response. As of this
date, no response has been received by this office.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
HQ USAF/JAA has reviewed the case and recommended denial on the basis
that neither the applicant nor the former spouse elected coverage
during the required one-year period. They indicate the applicant’s
current spouse is the proper SBP beneficiary. JAA indicated that
based on the SBP legislation and applicable case law, the request
should be denied.
A complete copy of the evaluation is attached at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluation and disagrees with the
decision regarding his former spouse as the SBP
beneficiary. He further states neither he nor his former spouse were
aware that notification had to be made to DFAS. The applicant
submitted another copy of his divorce decree ordering G. as the SBP
beneficiary (Exhibit E).
On 30 April 2004, the Board staff forwarded the applicant a copy of a
memorandum from HQ USAF/JAA, which will be considered in the
processing of his application (Exhibit F).
The applicant submitted a notarized statement dated 22 March 2004 from
his current spouse relinquishing her potential entitlement to SBP
(Exhibit G).
_________________________________________________________________
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. We took notice of the applicant's
complete submission in judging the merits of the case.
Notwithstanding the opinions rendered by HQ USAF/JAA, after
thoroughly reviewing the circumstances of this case, it is the
opinion of the Board majority that the former spouse should receive
the SBP annuity at the reduced level of retired pay to comply with
the divorce decree awarding the asset to her by the court. The
majority notes the current spouse has provided a notarized statement
relinquishing her entitlement to the SBP. The majority is persuaded
it was the applicant’s intent to provide his former spouse the SBP
annuity and is satisfied his current spouse is fully aware she is
relinquishing her entitlement to the annuity. Therefore, the Board
majority accepts the opinion and recommendation from the Air Force
and recommends 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 1 March 1986, he
elected under the Survivor Benefit Plan to change his coverage from
“spouse” to “former spouse,” naming as former spouse beneficiary,
based on reduced retired pay.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2003-03404 in Executive Session on 14 April 2004 and 18 June 2004,
under the provisions of AFI 36-2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Mr. Michael J. Novel, Member
Ms. Kathy L. Boockholdt, Member
By majority vote, the Board recommended granting the application. Ms.
Boockholdt voted to deny correcting the records but she does not
desire to submit a Minority Report. The following documentary
evidence was considered:
Exhibit A. DD Form 149, dated 16 Sep 03, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 8 Dec 03.
Exhibit C. Letter, SAF/MRBR, dated 19 Dec 03.
Exhibit D. Letter, HQ USAF/JAA dated 29 Jan 04.
Exhibit E. Applicant’s Response, dated 25 Feb 04, w/atch.
Exhibit F. Letter, AFBCMR, dated 30 Apr 04, w/atch.
Exhibit G. Spouse statement, dated 23 Apr 04.
ROSCOE HINTON, JR.
Panel Chair
AFBCMR BC-2003-03404
MEMORANDUM FOR THE CHIEF OF STAFF
Under the authority of Section 1552, Title 10, United States
Code, Air Force Instruction 36-2603, and having assured compliance
with the provisions of the above regulation, the decision of the Air
Force Board for Correction of Military Records is announced, and it
is directed that:
The pertinent military records of the Department of the Air
Force relating to , be corrected to show that on 1
March 1986, he elected under the Survivor Benefit Plan to change his
coverage from “spouse” to “former spouse,” naming as former
spouse beneficiary, based on reduced retired pay.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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