RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03655
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election
for former spouse and child coverage under the Survivor Benefit
Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
He notified Defense Finance and Accounting Service (DAFAS) of
the finalization of his divorce, which was effective 4 April
2011. He was instructed by DFAS to fax them the divorce decree;
however, he was not instructed to change his SBP election from
spouse and child to former spouse and child coverage as required
by the divorce decree.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________ ______________________________________________
STATEMENT OF FACTS:
On 31 August 2010, the applicant was relieved from active duty
and retired, effective 1 September 2010, and was credited with
24 years, 5 months, and 2 days of total active service.
The remaining 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 contingent upon recoupment of
any applicable premiums. A persons eligibility to receive a
spouse SBP annuity terminates upon divorce. The only means by
which the divorced spouse can become a SBP beneficiary is if
former spouse coverage is elected by the service member or a
deemed election is made on the basis of a court order. However,
the court order must be submitted along with an election within
one year of the date of the original court order which awarded
the 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. In this case, the applicant and former spouse were
married on 17 July 1985. He elected spouse and child SBP
coverage based on full retired pay prior to his 1 September 2010
retirement. The parties divorced on 4 April 2011 and as a part
of the Marital Settlement Agreement, the applicant was directed
to pay a survivors annuity to his former spouse. However,
there was no evidence that either the applicant or the former
spouse made an election to change spouse to former spouse
coverage within the first year following their divorce.
Although SBP premiums continue to be deducted from the
applicants retired pay and his former spouse was erroneously
reflected as his eligible spouse beneficiary, the former spouse
is not eligible for annuity payments upon the applicants death
since an election was not made. However, it appears to be the
applicants intent for his former spouse to be the eligible SBP
beneficiary. He accepted a reduction in retired pay for over a
year, indicative of his intent to maintain his former spouse as
the eligible SBP beneficiary. Neither party has remarried;
accordingly, there is no competing claimant.
A complete copy of the 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 September 2012 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 error or injustice to warrant
corrective action. We took notice of the applicants complete
submission in judging the merits of the case and agree with the
opinion and recommendation of the Air Force office of primary
responsibility (OPR) that it would be appropriate to recommend
granting the requested relief. While there is no evidence of an
error on the part of the Air Force, in view of the fact the
applicant did not request termination of SBP coverage and
premiums continued to be deducted from the former members
retired pay, we find this illustrates his intent to continue SBP
for his former spouse. Therefore, in the interest of justice,
we recommend that the records be corrected as indicated below.
________________________________________________________________
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
5 April 2011, he elected former spouse and child coverage under
the Survivor Benefit Plan (SBP), based on full retired pay,
naming his former spouse as the beneficiary.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-03655 in Executive Session on 7 May 2013, 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 23 July 2012, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 12 September 2012.
Exhibit D. Letter, SAF/MRBR, dated 24 September 2012.
Panel Chair
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