RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04626
	XXXXXXX (DECEASED)	COUNSEL:  NONE
	APPLICANT:	HEARING DESIRED:  YES

________________________________________________________________

THE APPLICANT REQUESTS THAT:

She be entitled to benefits under the Survivor Benefit Plan 
(SBP).

________________________________________________________________

THE APPLICANT CONTENDS THAT:

Because of the hostility in the divorce, she did not find out 
about the divorce for many months.

She was never aware and was not briefed on her entitlement to 
survivor benefits until recently.

In support of her appeal, the applicant provides a personal 
statement; copies of the decedent’s death certificate and the 
divorce decree.

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

________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted 
from the applicant’s military records, are contained in the 
letter prepared by the appropriate office of the Air Force.  

________________________________________________________________

THE AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval, stating, in part, there is no 
evidence of Air Force error in this case and absent a competing 
claimant, DPFFF recommends the decedent's record be corrected to 
reflect on 1 Feb 94, 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.

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.  One of the following actions must be taken 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 
the Defense Finance and Accounting Service-Cleveland Center 
(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.

The Defense Enrollment Eligibility Reporting System (DEERS) 
records show the applicant and the member were married on 30 Jan 
59.  The member retired on 1 Aug 68 and elected spouse and child 
SBP coverage based on full retired pay during the initial SBP 
open enrollment period authorized by Public Law (PL) 92-425 
(21 Sep 72- 20 Mar 74).  The youngest child lost eligibility Jan 
89.  The parties divorced on 31 Jan 94, and the divorce decree 
was silent on the SBP.  There is no evidence the member 
submitted a valid election to voluntarily change spouse to 
former spouse SBP coverage within the first year following their 
divorce as the law requires.  SBP premiums continued to be 
deducted from the member's retired pay until 1 Oct 08, when he 
became "paid-up" under the provisions of PL 105-261 (17 Oct 98).  
DFAS-CL records continued to erroneously reflect the applicant's 
name as the eligible spouse beneficiary.  The member died on 
1 Nov 09.  There is no evidence either party remarried, and 
accordingly, there is no competing claimant.

Although the member failed to submit an election to establish 
former spouse coverage, he did not request the applicant's 
coverage be terminated.  His willingness to accept a reduction 
in his retired pay for over 14 years after his divorce is 
indicative of his intention to maintain the applicant as the 
eligible SBP beneficiary.

The complete DPFFF evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant provides evidence that she remarried on 14 Feb 95.  
She states that the divorce left her penniless, after 30 years 
of marriage and with four sons.

In support of the appeal, the applicant provides a personal 
statement and copies of her marriage certificate.

The applicant’s complete response, with attachments, is at 
Exhibit D.

________________________________________________________________

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 error or injustice warranting 
corrective action.  Based on the available evidence of record 
and the applicant’s submission, it appears the decedent and the 
applicant had divorced prior to his death and a SBP election was 
not made, and while the provided documentation reflects the 
applicant remarried at age 56, there is no record that the 
decedent remarried.  Based on our review, it appears while the 
applicant and the decedent’s divorce decree is silent on SBP 
entitlements, he continued to make SBP payments with the 
applicant reflected as the eligible spouse beneficiary.  
Considering the applicant failed to execute a deemed election 
within one year of her divorce from the decedent and the SBP was 
established during the decedent’s marriage to the applicant, the 
applicant, in our view, is entitled to the SBP benefit.  
Although the spouse coverage was never converted to former 
spouse coverage, we believe the decedent’s intent to cover the 
applicant is supported by the continued payments and the fact 
the applicant’s name was not removed from the SBP.  Therefore, 
in view of the above and in the interest of justice, we 
recommend the decedent’s record be corrected as indicated below.

4.  The applicant's 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 issue(s) 
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 DECEDENT, be corrected to show that on 
1 February 1994, he elected to change his Survivor Benefit Plan 
(SBP) spouse only coverage to former spouse coverage, based on 
full retired pay, naming APPLICANT as former spouse beneficiary.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2012-04626 in Executive Session on 31 July 2013, under 
the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The 
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Sep 12, w/atchs.
     Exhibit B.  Letter, AFPC/DPFFF, dated 29 Jan 13.
     Exhibit C.  Letter, SAF/MRBR, dated 17 Feb 13.
     Exhibit D.  Letter, Applicant, 26 Feb 13, w/atchs.




                                   Panel Chair