RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01800
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect former spouse Survivor
Benefit Program (SBP) election.
_________________________________________________________________
APPLICANT CONTENDS THAT:
In Oct 90, his divorce decree was forwarded to the Defense
Finance and Accounting Service (DFAS); however, the former spouse
election form was not included. He has tried repeatedly via
electronic mail, fax and phone to correct this error. He would
like to have the coverage established for his former spouse.
In support of his request, the applicant submits copies of
letters from DFAS and his divorce decree.
The applicants complete submission, with attachments, is at
Exhibit A.
On a separate DD Form 149, the applicants former spouse requests
SBP coverage be reestablished on her behalf. The premiums were
paid before and after the divorce. Neither party was informed or
notified about the one year time frame for submitting an
election. The parties assumed all paperwork for SBP benefits
were filed correctly after the divorce by the attorney.
The former spouses complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 12 Oct 63, the applicant was married. On 1 Feb 71, he retired
from service and elected spouse and child coverage based on full
retired pay during the open enrollment authorized by Public Law
(PL) 97-35 (1 Oct 81 to 31 Sep 82). Effective Jun 86, the
children were no longer eligible as contingent beneficiaries.
On 12 Oct 90, the parties divorced and the applicant was ordered
to elect SBP on behalf of his former spouse. Neither party
submitted an election for former spouse coverage within the first
year of the divorce; however, the member did not request his
former spouse be removed as the SBP beneficiary. In addition,
the monthly premiums continued to be deducted from his retired
pay.
On 16 Mar 12, the applicant was notified by DFAS that his SBP
spouse coverage was adjusted from former spouse coverage to no
beneficiary coverage effective 12 Oct 90, based on his recent
submission of his divorce decree. Due to this action, he was
refunded in the amount of $17,696.81.
On 26 Mar 12, he was notified that his request to establish
former spouse coverage and repay the premiums was not adequate to
elect SBP coverage for his former spouse.
While DPSIAR states there is no evidence either party has
remarried, if it is later determined there was a competing
spouse, the Board has the authority to void its decision based on
new evidence indicating the applicant (member) has remarried.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends approval of the applicants request.
DPSIAR notes there is no evidence of Air Force error in this
case. Additionally, a review of the former service members
record via the Defense Enrollment Eligibility Reporting System
(DEERS) confirmed there is no competing claimant.
DPSIAR states to deny the applicants request would be to deny
his former spouse an asset awarded to her by the court.
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant fully concurs with the DPSIAR recommendation. He
would like the funds electronically debited from his account by
DFAS as they were credited. He states retaining the funds will
place him in an unsustainable and libelous situation. He will be
in trouble with the Internal Revenue Service (IRS), his state tax
office, etc., if he does not pay back the premiums.
The applicants complete submission, with attachments, 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 timely filed.
3. Sufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice. In this
respect, we note the Air Force office of primary responsibility
(OPR) recommends the service members record be changed to
reflect that he elected former spouse coverage under SBP and we
agree with their recommendation. Therefore, in the interest of
justice we recommend his records be corrected to show that he
made a timely election for spouse coverage based on full retired
pay under the SBP. Regarding his request to have SBP premiums
electronically debited from his account, the AFBCMR is empowered
only to correct records, determining how the SBP funds are paid
is the responsibility of the Defense Finance and Accounting
Service (DFAS). As such, this request is outside the Boards
purview. In view of the above, we recommend 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 13 Oct 90, he
elected former spouse coverage based on full retired pay under
the Survivor Benefit Plan, naming his former spouse as the
eligible beneficiary.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 18 Jan 13, under the provisions of AFI 36-
2603:
Panel Chair
Member
Member
All members voted to correct the record as recommended. The
following documentary evidence pertaining to AFBCMR BC-2012-01800
was considered:
Exhibit A. DD Form 149, dated 9 Apr 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 11 Jun 12.
Exhibit C. Letter, SAF/MRBR, dated 25 Jun 12.
Exhibit D. Letter, Applicant, dated 4 Jul 12.
Panel Chair
AF | BCMR | CY2012 | BC-2012-01307
If neither the member nor the 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 DFAS—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...
AF | BCMR | CY2011 | BC-2011-04466
_______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. While we do not take issue with the applicants assertion that her divorce decree ordered her deceased former husband to continue coverage for her under the SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. ...
AF | BCMR | CY2011 | BC-2011-04245
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04245 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the first year...
AF | BCMR | CY2012 | BC-2012-02752
There is no evidence of Air Force error in this case and absent a competing claimant, DPSIAR recommends the member's record be corrected to reflect on 10 Apr 2009, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. 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...
AF | BCMR | CY2012 | BC-2012-01209
If neither the member nor the spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. ________________________________________________________________ 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 27 August 1996, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) at the previous reduced level...
AF | BCMR | CY2011 | BC-2011-04372
There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. The evidence of record reflects that as a part of the divorce settlement the court ordered the applicant to elect former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force...
AF | BCMR | CY2012 | BC 2012 02752
The member did not request coverage for his former spouse be terminated and the fact that SBP premiums were deducted from his retired pay for over three years following their divorce are indicative of his intent to maintain the applicant as the eligible SBP beneficiary. There is no evidence of Air Force error in this case and absent a competing claimant, DPSIAR recommends the member's record be corrected to reflect on 10 Apr 2009, he elected to change SBP spouse to former spouse coverage...
AF | BCMR | CY2011 | BC-2011-00062
She indicates there is no evidence the deceased former member elected former spouse coverage for any of his former spouses. In Dec 92, DFAS received an SBP Open Enrollment Election form from the member requesting to change the applicants coverage from spouse to former spouse. A complete copy of the AFRBA Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant contends...
AF | BCMR | CY2012 | BC-2012-03982
The former service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. She has not provided any evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law.
AF | BCMR | CY2012 | BC-2012-00128
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. To date, a response has not been received (Exhibit C). _______________________________________________________________ THE BOARD RECOMMENDS...