RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER: BC-2011-02485
(DECEASED) COUNSEL: NONE
HEARING DESIRED: NO
(APPLICANT)
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to receive her husbands Survivor Benefit Plan
(SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her divorce decree lists her as the former spouse to receive SBP
benefits.
In support of her request, the applicant provides a copy of her
former spouses DD Form 214, Certificate of Release or Discharge
from Active Duty, a copy of the former members death
certificate, a copy of a letter from the Defense Finance and
Accounting Service (DFAS), and a copy of her marriage
certificate.
Her complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The decedent retired from the Air Force on 27 May 03 in the grade
of senior master sergeant (E-8), having assumed that grade
effective and with a date of rank of 1 Nov 93.
Additional relevant facts pertaining to this application 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:
AFPC/DPSIAR states absent a competing claimant, they recommend
approval. DPSIAR states the applicant and the former member were
married on 28 Mar 83 and he elected spouse and child SBP coverage
based on full retired pay prior to being placed on the Permanent
Disability Retired List (PDRL) effective 28 May 03. The parties
divorce was finalized on 10 May 07, and the divorce decree
ordered the applicant to be designated as the former spouse SBP
beneficiary. There is no evidence either party submitted a valid
election to change spouse to former spouse coverage within the
first year following their divorce as the law requires. The
youngest child lost eligibility effective 1 Jul 07 due to age.
DFAS records continued to reflect the applicants name and date
of birth as the eligible spouse beneficiary and premiums
continued to be deducted from the former members retired pay
until his death on 23 May 11. There is no evidence the former
member remarried, and accordingly, there is no competing
claimant.
Despite the former members 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
applicants request would deny an asset awarded her by the court.
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 19 Aug 11 for review and comment within 30 days. As of this
date, this office has received no response.
_________________________________________________________________
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 error or injustice. In this
respect, although neither the former member nor the applicant
filed a valid election for SBP within the required time, it is
clear the former members intent was for his former spouse to be
the SBP beneficiary. Therefore, since there is no competing
spouse, we agree with the Air Force office of primary
responsibility and recommend that the records be corrected as
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 11 May 2007,
he elected to change spouse and child to former-spouse coverage
under the Survivor Benefit Plan (SBP) based on full retired pay,
naming Joye Rice as the former-spouse beneficiary.
______________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2011-02485 in Executive Session on 1 Nov 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 20 Jun 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 11 Aug 11.
Exhibit C. Letter, SAF/MRBR, dated 19 Aug 11.
Panel Chair
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