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AF | BCMR | CY2012 | BC-2012-02752
Original file (BC-2012-02752.txt) Auto-classification: Approved
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-02752
	(DECEASED)	COUNSEL:
	(APPLICANT)	HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her former spouse’s (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 made an agreement with her to allocate their 
assets and divide their property as a result of their 9 Apr 
2009 divorce.  As a part of that agreement, both parties 
consented to keep each other as beneficiaries on their death 
benefits.

In support of her request, the applicant provides a personal 
statement, copies of the decedent’s death certificate, informal 
agreement between the applicant and the decedent, email 
communiqué, Employee Actuarial Information, DD Form 1173, 
Identification and Privilege Card, and a letter from her 
attorney.

The applicant's complete submission, with attachments, is at 
Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

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 
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 Defense 
Enrollment Eligibility Reporting System (DEERS) records show 
the applicant and the member were married on 24 Oct 1981.  The 
member elected spouse and child SBP coverage based on full 
retired pay prior to his 1 Mar 2001 retirement.  The parties 
divorced on 9 Apr 2009; however, there was not a formal 
separation agreement or division of property settlement, and 
the divorce decree did not address the SBP.  There is no 
evidence the member submitted a valid election to voluntarily 
change spouse to former spouse coverage within the first year 
following their divorce as the law requires.  The youngest 
child lost eligibility due to age effective 1 Jul 2011.  
Defense Finance and Accounting Service-Cleveland Center (DFAS-
CL) records continued to reflect the applicant's name and date 
of birth as the eligible spouse beneficiary and SBP premiums 
were deducted from the member's retired pay until his 13 Apr 
2012 death.  There is no evidence either party remarried, and 
accordingly there is no competing claimant.

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 based on full retired pay, naming the applicant as 
the former spouse beneficiary.  Approval should be contingent 
upon recovery of any applicable premiums.

The complete DPSIAR evaluation is at Exhibit B.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 11 Sep 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/DPSIAR’s recommendation that the member’s 
records should be corrected to reflect that he made a valid 
election based on full retired pay effective 10 Apr 2009, 
naming his former spouse as the eligible former spouse 
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 MEMBER, be corrected to show that on 10 Apr 
2009, 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 12 Feb 2013, 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-
2012-02752:

    Exhibit A.  DD Form 149, dated 22 Jun 2012, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIAR, dated 30 Aug 2012.
    Exhibit C.  Letter, SAF/MRBR, dated 11 Sep 2012.




								
			Panel Chair

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