RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-04712
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses records be corrected to reflect he made a
timely election for former spouse coverage under the Survivor
Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Six days after the divorce was final, her attorney submitted a
request to the Defense Finance and Accounting Service (DFAS) for
her portion of the retirement pay and a SBP election for former
spouse coverage, both awarded to her by the court.
By letter dated 2 Feb 94, DFAS notified her attorney that a
specific form was needed for the division of retirement pay
garnishment. The form was completed and submitted. However,
there was no indication that further documentation was needed to
establish the applicant as the former spouse beneficiary for SBP.
In May 2007, the applicant contacted DFAS to inquire if the
service member was eligible to retire. She was informed that he
had already retired, but she was not authorized to receive a
portion of his retired pay, nor was she designated as the former
spouse beneficiary of his SBP. While the issues related to her
portion of the retired pay appear to be resolved, she has been
unable to resolve the SBP issue despite the fact she submitted a
deemed election for former spouse coverage well within the
requisite year following the divorce.
In support of her request, the applicant provides copies of
letters from her attorney to DFAS, a letter from DFAS to the
applicants attorney, and a copy of a congressional inquiry.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application are contained
in the letter prepared by the appropriate offices of the Air
Force, which are attached at Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
AFRC/DPSIAR recommends granting the requested relief. DPSIAR
states that in the interest of justice, it would be appropriate
to enforce the agreements awarded the applicant by the court.
The complete AFPC/DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
and the service member on 11 Feb 11 for review and comment within
30 days (Exhibit C).
By letter, dated 24 Feb 11, the service members attorney notes
his clients current spouse has declined spouse coverage under
the SBP and, as long as he does not incur a cost in the form of
monthly premiums, he will agree to remain neutral with respect to
the proposed modification of his record.
It is further noted that his former spouse is currently receiving
monies from his retired pay and that she is a federal employee
with her own retirement plan.
Counsels complete response is at Exhibit D.
_________________________________________________________________
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 error or injustice. The
applicant contends she made a timely deemed election for former
spouse coverage under the Survivor Benefit Plan (SBP). After a
thorough review of the applicants complete submission and the
evidence of record, to include the various responses from the
applicant and the member, we believe the applicant has been the
victim of an error or injustice. In this respect, we note the
comments by the Air Force office of primary responsibility (OPR)
indicating that while there is no evidence she made a valid
request for a deemed election, denial of the request would
deprive the applicant of an asset awarded to her by the court.
We note the requested relief will result in SBP premiums being
deducted from the former members retired pay. We also note the
former members stated objection in response to the Air Force
evaluation to incurring any cost incident to the requested
correction to his records. Nevertheless, we believe the
applicant has provided sufficient evidence reflecting her
entitlement to former spouse coverage under the SBP. Moreover,
the court has ordered the coverage, and there is no competing
spouse. Therefore, we concur with the findings and
recommendation of the Air Force office of primary responsibility
and recommend the former service members 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 the APPLICANT be corrected to show that on
1 August 2004, he elected former spouse coverage under the
Survivor Benefit Plan (SBP), naming as the former spouse
beneficiary based on full retired pay.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2010-04712 in Executive Session on 7 Sep 11, 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 23 Dec 09, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 28 Jan 11.
Exhibit C. Letters, SAF/MRBR, dated 11 Feb 11.
Exhibit D. Letter, Former Service Members Counsel,
Dated 24 Feb 11.
Panel Chair
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