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 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 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 decedents 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/DPSIARs recommendation that the members
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 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 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
AF | BCMR | CY2012 | BC 2012 02752
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