RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-00058
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His former spouse be listed as his Survivor Benefit Plan (SBP)
beneficiary.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He learned his former spouse was not listed as the beneficiary on
the SBP on 11 Sep 09. His former spouse has contacted her
attorney to determine if he had prepared the required paperwork;
however, the attorney has not responded to her request. He is
asking for his records to be corrected to reflect his former
spouse, XXX, as his SBP beneficiary.
In support of his request, applicant provides a copy of his
divorce decree and a copy of an e-mail from AFPC/DPSIAR.
His complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Defense Enrollment Eligibility Reporting System (DEERS) records
show the applicant and the former spouse were married on 26 Sep
75. The member elected spouse only SBP coverage based on full
retired pay prior to his 1 Sep 97 retirement.
The applicant and former spouse divorced on 7 May 03 and the
divorce decree ordered the applicant to elect a Survivor Benefit
Option for the former spouse. However, there is no evidence
either party submitted a valid former spouse election within the
first year following their divorce as the law requires. The
applicant and his current spouse married on 29 Jul 03, but he did
not notify the finance center of the change in his marital status
or request that spouse coverage be established. Absent a valid
election for former spouse coverage, the applicants current
spouse automatically became the eligible spouse beneficiary by
operation of law on the first anniversary of their marriage.
_________________________________________________________________
AIR FORCE EVALUATION:
DPSIAR has no recommendation since it involves two potential SBP
beneficiaries. DPSAIR states the divorce decree ordered the
former spouse remain the SBP beneficiary; however, there is no
evidence either party submitted a valid former spouse election
within the first year following their divorce as the law
requires. The DFAS records erroneously reflect the former
spouses name and date of birth as the eligible spouse
beneficiary and premiums continue to be deducted from the
members retired pay.
The DPSIAR complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 26 Feb 10 for review and comment within 30 days. As of this
date, this office has received no response.
_________________________________________________________________
ADDITIONAL AIR FORCE ADVISORY:
The AFRBA Legal Advisor recommends denial and states in part that
despite the May 03 court order directing the member to convert to
former spouse coverage, federal law makes the election
unavailable when the deemed election is not timely filed. If
there were not a competing eligible beneficiary, the AFRBA Legal
Advisor would recommend correcting the record, but there is. The
AFRBA Advisor would also recommend correcting the record if the
current spouse gives her notarized consent. Absent that consent,
no extraordinary circumstances exist that support not enforcing
the deemed election requirement given the fact that correcting
the record in the manner requested will deprive the members
current spouse benefits to which she is legally entitled.
The complete AFRBA Legal Advisor evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicants current spouse sent a notarized letter that gives
her consent to name the applicants former spouse as his SBP
beneficiary.
The applicants complete submission is at Exhibit F.
_________________________________________________________________
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 injustice. After a thorough
review of the evidence of record and noting that the applicant's
current spouse has provided a notarized statement indicating that
she concurs with the request and fully understands the
ramifications thereof, we believe that in the interest of justice
favorable action is warranted. Accordingly, it is our
recommendation that the applicant's records be corrected to the
extent set forth 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 7 May 2003, he
elected former-spouse coverage under the Survivor Benefit Plan
(SBP) based on full retired pay, naming his former spouse as the
former-spouse beneficiary.
______________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2010-00058 in Executive Session on 11 May 10, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 26 Dec 09, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 11 Feb 10.
Exhibit C. Letter, SAF/MRBR, dated 26 Feb 10.
Exhibit D. Letter, AFRBA Legal Advisor, dated 22 Mar 10.
Exhibit E. Letter, AFBCMR, dated 25 Mar 10.
Exhibit F. Letter, Applicants Spouse, dated 4 Apr 10.
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