AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
DOCKET NUMBER: BC-2012-00128
COUNSEL: NONE
HEARING DESIRED: NO
IN THE MATTER OF:
________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouse’s records be corrected to show he made a
timely election for former spouse coverage under the Survivor
Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
Her former spouse did not take all necessary actions to change
SBP coverage to name her as the former spouse beneficiary
following their divorce. He did not abide by the court order
and did not inform her of the requirement.
In support of her request the applicant provides a personal
statement and a copy of the Final Judgment of Dissolution of
Marriage and Conveyance of Real Property.
The applicant's complete submission, with attachments, is at
Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
According to the information provided by the Air Force office
of primary responsibility, the member and the applicant were
married on 22 Dec 1978. He elected spouse and child coverage
based on a reduced level of retired pay prior to his 1 Sep
2001 retirement. Their divorce was finalized on 30 May 2007.
The divorce decree ordered the member to take all necessary
actions to change the applicant to a "former spouse
beneficiary.” Neither party submitted a valid election for
former spouse coverage within the first year as required by
law. The Defense Enrollment Eligibility Reporting System
(DEERS) records show the member remarried on 16 Oct 2009;
however, there is no evidence he requested she become the
eligible spouse beneficiary and the marriage terminated on
15 Feb 2011. The youngest child lost eligibility in Sep
2011 due to age. Premiums continued to be deducted from the
member's retired pay until Oct 2011, when DFAS-CL retroactively
suspended spouse coverage and issued the member a refund of
overpaid premiums.
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:
HQ AFPC/DPSIAR recommends approval. DPSIAR states there is no
evidence of Air Force error in this case; however, in the
interest of justice and absent a competing claimant, DPSIAR
recommends the member's record be corrected to show he elected
SBP former spouse coverage based on the previous reduced level
of retired pay effective 31 May 2007, naming his former spouse
as 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 8 Mar 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).
_______________________________________________________________
2
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/DPSIAR’s recommendation that the member’s
records should be corrected to reflect that he made a valid
election based on the reduced level of retired pay effective
31 May 2007, naming his former spouse as the eligible
beneficiary. Accordingly, we recommend the applicant’s records
be corrected as 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
31 May 2007, he elected former spouse coverage under the
survivor benefit plan (SBP), based on a reduced level of
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 25 Oct 2012, under the provisions of AFI 36-
2603:
The following documentary evidence was considered in AFBCMR BC-
2012-00128:
Exhibit A. DD Form 149, dated 9 Jan 2012, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 24 Feb 2012.
Exhibit C. Letter, SAF/MRBR, dated 8 Mar 2012.
Panel Chair
Member
Member
Panel Chair
3
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