RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03554
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
The deceased former members records be corrected to reflect he
made a timely election for former spouse coverage under the
Survivor Benefit Plan (SBP), naming the applicant as the
beneficiary.
________________________________________________________________
APPLICANT CONTENDS THAT:
From the date the deceased former member retired until his
death, he paid for SBP spousal coverage. The deceased former
member and his spouse divorced on 28 Feb 12, and he died on
26 Mar 2012. At the time of his death, a year had not passed
since the divorce, so there is no way of knowing if he would
have made a deemed election to provide SBP to his former spouse.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application are contained
in the letter prepared by the Air Force office of primary
responsibility (OPR), which is attached at Exhibit C.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends approval. A persons eligibility to
receive a spouse SBP annuity terminates upon divorce. However,
the law provides two mechanisms for changing spouse coverage to
former spouse coverage. One of the following actions must be
exercised within the first year following the 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 showing the member agreed, or that
the court ordered the member to establish former spouse
coverage. 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 former
spouse is not eligible for annuity payments upon the members
death even though a member fails to notify the Defense Finance
and Accounting ServiceCleveland (DFAS-CL) of the divorce and
continues to pay SBP premiums afterword.
The member and the applicant were married on 8 Feb 69. He
elected spouse only coverage (immediate option) based on full
retired pay under the Reserve Component-SBP (RC-SBP) at the time
he completed his Guard Service obligation (8 Jul 92). His
retired pay did not commence until his 60th birthday (23 Aug 05).
The parties divorced 28 Feb 12, and the decree was silent on the
RC-SBP. The member died on 26 Mar 12; his death certificate
reflects he was divorced and the Defense Enrollment Eligibility
Reporting System (DEERS) does not reflect he remarried before
his death. There is no evidence the member submitted an
election to change spouse coverage to former spouse coverage
following their divorce, nor is there any evidence he requested
the applicant be removed as his SBP spouse beneficiary. Based
upon the members death so soon after their divorce, to deny the
applicants request would be to deny her a benefit the late
member may have intended to provide her. There is no evidence
of an Air Force error in his case.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 24 Sep 12 for review and comment within 30 days.
As of this date, no response has been received by this office
(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 injustice. We took notice of
the applicant's complete submission in judging the merits of the
case and 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 relief should be granted.
Although we find no evidence of an error on the part of the Air
Force, we believe that it is in the interest of justice to
provide the requested relief. Therefore, we recommend the
applicants record be corrected as indicated below.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to the DECEASED FORMER MEMBER be corrected to
show that on 29 February 2012, he elected former-spouse coverage
under the Survivor Benefit Plan (SBP) based on full retired pay,
naming his former spouse as the eligible former spouse
beneficiary.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-03554 in Executive Session on 7 May 13, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
All members voted to correct the records as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 19 Jul 12, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 10 Sep 12.
Exhibit D. Letter, SAF/MRBR, dated 24 Sep 12.
Panel Chair
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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...