RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-04113
COUNSEL:
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
The former members records be corrected to reflect that he made
a timely election for former spouse coverage under the Survivor
Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
Her attorney timely submitted the proper documentation and
election of SBP coverage on her behalf to the Defense Finance
and Accounting Service (DFAS). DFAS confirmed receipt and
indicated the request would be held in abeyance until the former
members retirement. However, DFAS later notified the applicant
that her election was not timely filed as, according to DFAS
records, it was received four days after the their system of
record reflected that the election was received four days late.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________ ______________________________________________
STATEMENT OF FACTS:
On 31 October 2010, the member was relieved from active duty and
retired, effective 1 November 2010, and was credited with 28
years and 4 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 recovery of all
applicable SBP premiums. Title 10, USC, Sections 1448(b)(2) and
1450(f)(3)(A) pertain to a members and a former spouses
responsibilities to elect, or to deem (respectively) SBP
coverage when a divorce occurs while the member is on active
duty. A member has no opportunity to make an SBP election
before out-processing for retirement; however, a former spouse
must submit a valid request to DFAS to deem SBP coverage within
the first year following divorce. 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. In this case, the applicant and former member
were married on 29 December 1983. They divorced on 28 September
2007 and the court ordered the applicant be provided SBP
coverage. On 12 September 2008, the applicants attorney
submitted a SBP election request to DFAS. On 13 February 2009,
DFAS acknowledged receipt and indicated the request would stay
on file until the members retirement. The member retired
effective 1 November 2010 and elected child only coverage under
the SBP based on full retired pay. However, on 30 September
2011, DFAS informed the applicant that her SBP coverage election
was not timely filed. However, to deny the applicants request
would be to deny her a benefit awarded to her by the court.
There is no evidence the applicant or the former member have
remarried, as such, 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 16 October 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. 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 DFAS apparently erroneously acknowledged timely receipt of
the applicants deemed election for former spouse coverage, it
appears as though her deemed election was not received by DFAS
within one year of the divorce as required by the governing
statute. Nevertheless, we believe the applicant and her counsel
exercised due diligence in ensuring the deemed election was
timely provided to DFAS and believe it would be an injustice to
deny the applicant an entitlement awarded to her by the court.
Therefore, in view of the fact there is no competing claimant,
we believe it would be in the interest of justice to grant the
requested relief and correct the records as indicated below.
4. The applicants case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably
considered.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to the FORMER MEMBER be corrected to show that on
1 November 2010, former spouse and child coverage was
established under the Survivor Benefit Plan (SBP) based on full
retired pay, naming the APPLICANT as the former-spouse
beneficiary.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-04113 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 29 August 2012, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 2 October 2012.
Exhibit D. Letter, SAF/MRBR, dated 16 October 2012.
Panel Chair
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-2012-02752
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-2012-03655
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). However, there was no evidence that either the applicant or the former spouse made an election to change spouse...
AF | BCMR | CY2010 | BC-2010-04712
_________________________________________________________________ APPLICANT CONTENDS THAT: Six days after the divorce was final, her attorney submitted a request to the Defense Finance and Accounting Service (DFAS) for her portion of the retirement pay and a SBP election for former spouse coverage, both awarded to her by the court. By letter dated 2 Feb 94, DFAS notified her attorney that a specific form was needed for the division of retirement pay garnishment. ...
AF | BCMR | CY2012 | BC-2012-01800
On 12 Oct 90, the parties divorced and the applicant was ordered to elect SBP on behalf of his former spouse. Neither party submitted an election for former spouse coverage within the first year of the divorce; however, the member did not request his former spouse be removed as the SBP beneficiary. The complete DPSIAR evaluation is at Exhibit B.
AF | BCMR | CY2012 | BC-2012-05021
There is no evidence either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. SBP premiums for spouse coverage continued to be deducted from the members retired pay, and the former spouses name and date of birth remained as the applicants eligible spouse beneficiary until DFAS-CL received his 19 Mar 12 request to change spouse coverage to former spouse SBP coverage. ...
AF | BCMR | CY2012 | BC-2012-01209
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 BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 27 August 1996, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) at the previous reduced level...
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 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-2012-01307
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. Even though a member fails to notify DFAS—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...