RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-02598
COUNSEL:
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses (decedent) records be corrected to show he
made a timely election for former spouse coverage under the
Survivor Benefit Plan (SBP).
_______________________________________________________________
APPLICANT CONTENDS THAT:
The decedent kept her as the SBP beneficiary after their
divorce, as reflected on his Retiree Account Statement (RAS).
This confirms the decedent intended for her to remain his SBP
beneficiary.
The applicant's complete submission, with attachments, is at
Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
According to the Defense Enrollment Eligibility Reporting
System, the applicant and decedent were married on 22 Feb 1967.
A person's eligibility to receive a spouse SBP annuity
terminates upon 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: (1) the retiree may file an election change,
or (2) 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 the
member agreed, or 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-Cleveland Center
(DFAS-CL) of the divorce and continues to pay SBP premiums
afterwards, the former spouse is not eligible for annuity
payments upon the member's death.
_______________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends approval. DPSIAR states the decedent
elected SBP spouse only coverage based on full retired pay
prior to his 1 Jun 1989 retirement. The parties divorced on
9 Sep 2008, and the divorce decree did not address the SBP.
There is no evidence the member submitted a valid election to
change spouse coverage to former spouse coverage within the
first year following their divorce. The information maintained
in the retired pay system reflected the applicant's name and
date of birth as the eligible spouse beneficiary. Monthly
premiums continued to be deducted from the member's retired pay
until his 9 Dec 2011 death. There is no indication either
party remarried. Despite the members failure to submit a
valid former spouse election change, he did not request
coverage for the applicant to be terminated following their
divorce. His willingness to accept a reduction in his
retired pay for over three years after their divorce shows he
intended to maintain SBP coverage on her behalf. There is no
evidence of Air Force error in this case; however, absent a
competing claimant and to prevent a possible injustice,
DPSIAR recommends the member's record be corrected to reflect
he elected former spouse coverage based on full retired pay,
naming the applicant as the former spouse
beneficiary. Approval should be contingent upon recovery of
appropriate retroactive costs.
The complete DPSIAR evaluation is at Exhibit B.
_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 Aug 2012, a copy of the Air Force evaluation was forwarded
to the member for review and comment within 30 days. To date,
a response has not been received (Exhibit C).
_______________________________________________________________
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. There is no
evidence of Air Force error; however, to preclude an injustice,
we agree with AFPC/DPSIARs recommendation that the members
records should be corrected to reflect that he made a valid
election to change his spouse only coverage to former spouse
coverage under the SBP, based on full retired pay effective
8 Sep 2009, naming his former spouse as the eligible
beneficiary. Accordingly, we recommend the applicants
records be corrected as set forth below.
_______________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to MEMBER, be corrected to show that on 8 Sep
2009, he elected former spouse coverage under the Survivor
Benefit Plan (SBP), based on full retired pay, naming his
former spouse as the eligible beneficiary. Approval should be
contingent upon the recovery of applicable premiums.
_______________________________________________________________
The following members of the Board considered this application
in Executive Session on 12 Feb 2012, under the provisions of
AFI 36-2603:
Panel Chair
Member
Member
All members voted to correct the record as recommended. The
following documentary evidence was considered in AFBCMR BC-
2012-02598:
Exhibit A. DD Form 149, dated 11 Jun 2012, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 25 Jul 2012.
Exhibit C. Letter, SAF/MRBR, dated 7 Aug 2012.
Panel Chair
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