RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01857
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased 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:
Her divorce with the decedent was amicable. Although the
decree did not reflect a SBP stipulation, the decedent intended
for her to receive the SBP benefits he paid for following their
divorce.
In support of her request, the applicant provides a personal
statement and copies of her divorce decree and the decedents
death certificate.
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 (OPR), the member and the applicant
were married and he elected spouse and child coverage based on
full retired pay under the SBP prior to his 1 Aug
1989 retirement. They divorced on 21 May 2004, and the court
order was silent on the SBP. There is no indication the member
submitted an election to change spouse coverage to former
spouse coverage before 21 May 2005, as required by law. The
retired pay system continued to reflect the applicant's date of
birth as the eligible spouse beneficiary. There is no
indication either party remarried. SBP premiums continued to
be deducted from the member's retired pay until his 6 Dec
2011 death was reported and their divorce became a matter of
record.
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 fact that
the member did not request SBP coverage be terminated
following his divorce indicates he intended for the applicant
to remain his SBP beneficiary. There is no evidence of Air
Force error in this case; however, in the interest of
justice, DPSIAR recommends the member's record be corrected
to show he elected SBP former spouse only coverage based on
full retired pay effective 22 May 2004, naming his former
spouse as the eligible 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 2 Jul 2012, a copy of the Air Force evaluation was forwarded
to the applicant 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 the office of primary responsibilitys
recommendation that the deceased members records should be
corrected to reflect that he made a valid election based on
full retired pay effective 22 May 2004, naming his former
spouse as the eligible former spouse 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 DECEASED, be corrected to show that on
22 May 2004, he elected former spouse coverage under the SBP,
based on full retired pay, naming his former spouse as the
eligible beneficiary.
_______________________________________________________________
The following members of the Board considered this application
in Executive Session on 19 Dec 2012, under the provisions of
AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered in AFBCMR BC-
2012-01857:
Exhibit A. DD Form 149, dated 28 Mar 2012, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 18 Jun 2012.
Exhibit C. Letter, SAF/MRBR, dated 2 Jul 2012.
Panel Chair
AF | BCMR | CY2012 | BC-2012-01351
DPSIDAR states that there is no evidence of Air Force error in this case; however, in the absence of a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming APPLICANT as the former spouse beneficiary, effective 11 January 2005. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the...
AF | BCMR | CY2012 | BC-2012-02598
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. 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...
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 02598
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. 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...
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 | CY2012 | BC-2012-00454
To comply with federal law, AFAFC established spouse coverage based on full retired pay under the SBP, updated the applicant’s date of birth as the eligible spouse beneficiary and began deducting premiums from the service member’s retired pay. The DPSIAR complete evaluation is at Exhibit B. The Board has been advised that it can consider cases involving potential claims by more than one spouse or former spouse if there is evidence that the member or former spouse timely notified...
AF | BCMR | CY2012 | BC-2012-01541
DPSIAR requested the applicant provide a certified copy of the final divorce decree and/or the QDRO, which she claimed awarded SBP coverage to her following divorce. In the event the applicant provides the requested documents which prove the court awarded SBP coverage to her, absence a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming XXXXXXXXXXXXX as the...
AF | BCMR | CY2013 | BC 2012 02043
_________________________________________________________________ STATEMENT OF FACTS: While married, the member elected spouse and child coverage based on a reduced level of retired pay under the SBP prior to his 1 Jun 73 retirement. There is no record of marriage at the time of his death. While counsel argues the former member never married; the evidence of record, specifically, the death certificate states otherwise.
AF | BCMR | CY2012 | BC-2012-01544
Based on the available evidence of record and the applicants submission, it appears the decedent and the applicant were married in Feb 09. Subsequent to the divorce of his first spouse, a deemed election for former spouse coverage was submitted to DFAS and accepted in accordance with the divorce decree and the governing law. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 12.
AF | BCMR | CY2007 | BC 2007 03737
Even though the SBP was not addressed in the divorce decree, the member could have elected former spouse coverage voluntarily within the first year following the divorce, but failed to do so. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error...