RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-04712
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he elected former spouse
coverage under the Survivor Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
Because they were unaware of the requirement, neither he nor his
former spouse notified the Defense Finance and Accounting
Service (DFAS) within one year of their divorce. They divorced
on 1 Jul 05 (sic). By court order, she is to be identified as
the former spouse for the benefit of receiving former spouse
coverage under SBP. He has paid SBP premiums since his
retirement.
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/DPFFF 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. 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
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. Even though a member fails to notify
DFAS-Cleveland (DFAS-CL) of the divorce and continues to pay SBP
premiums afterwards, the former spouse is not eligible for
annuity payments upon the members death.
The applicant and his former spouse were married on 12 Dec 87,
and he elected spouse and child SBP coverage based on full
retired pay prior to his 1 Nov 02 retirement. The parties
divorce was finalized on 3 Jun 08, and the separation agreement,
incorporated in the divorce decree, contained language that the
former spouse will agree to notify by letter the military
pension entity of her deemed election as the former spouse
beneficiary of the SBP. There is no evidence either party
submitted a valid election to change spouse to former spouse
coverage within the first year following their divorce as the
law requires. SBP premiums continue to be deducted from the
members retired pay and DFAS-CL records continue to erroneously
reflect the former spouses name and date of birth as the
eligible spouse beneficiary. Neither party remarried, and
accordingly, there is no competing claimant. Despite the
applicants failure to submit a valid former spouse election
change, he did not request SBP coverage be terminated for his
former spouse. He accepted the reduction in retired pay for
over four years, indicative of his intent to maintain her as the
eligible SBP beneficiary. To deny the applicants request would
be to deny his former spouse an asset the parties agreed she
would retain. Approval should be contingent upon recoupment of
any applicable premiums.
The complete AFPC/DPFFF 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 14 Dec 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 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. 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 APPLICANT be corrected to show that on
4 June 2008, he elected former-spouse coverage under the
Survivor Benefit Plan (SBP) based on full retired pay, naming
his former spouse as the eligible beneficiary.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-04712 in Executive Session on 17 Jun 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 13 Sep 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPFFF, dated 6 Dec 12.
Exhibit D. Letter, SAF/MRBR, dated 14 Dec 12.
Panel Chair
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