RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	 	DOCKET NUMBER:  BC-2012-04943

MEMBER: (DECEASED)	COUNSEL:  NONE

APPLICANT: 
		 	HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her ex-husband’s record be corrected to show that he elected 
former spouse coverage under the Survivor Benefit Plan (SBP), 
naming her as beneficiary.  

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  Even though her ex-husband failed to designate her as a 
former spouse beneficiary on his Survivor Benefit Plan, it was 
his intention that the benefits be paid to her.  They were 
divorced in February 1998, however, he continued to pay premiums 
for a spouse and child beneficiaries.  Her ex-husband did not 
remarry until 2011.  

2.  Upon her ex-husband's death, she made application to the 
Defense Finance and Accounting Service (DFAS) for SBP benefits 
and was denied on the basis that her ex-husband did not 
designate her as a former spouse beneficiary.  This may be 
technically true, but DFAS continued to collect premiums for a 
spouse at a time when he did not have one.  She contends that 
during this period it was her ex-husband's intent that she be 
covered, and that DFAS accepted premiums for spousal coverage 
from 1998 to 2011 on her behalf, as there was no other spouse 
during that period.  Her ex-husband paid the premiums in good 
faith and with the understanding that the eventual benefit would 
cover her.  

In support of her request the applicant submits a personal 
statement, and copies of her divorce decree with attached child 
custody and marital dissolution agreement, the member’s retiree 
account statements, a letter from DFAS, and the member’s death 
certificate.  

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

________________________________________________________________


STATEMENT OF FACTS:

Information submitted by the applicant indicates her ex-husband 
retired from the Air Force in the grade of Technical Sergeant in 
1998 and died on 20 December 2011.  

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force at Exhibit C.  

________________________________________________________________

AIR FORCE EVALUATION:

1.  AFPC/DPFFF recommends approval.  DPFFF states the member did 
not request coverage for his former spouse be terminated and his 
willingness to accept a reduction in his retired pay after divorce 
may be considered to have been an indication of his intent to 
maintain SBP coverage on the applicant's behalf.  To deny the 
applicant's request would deny her an asset awarded to her by the 
court.  

2.  The member and the applicant were married on 14 Feb 76, and he 
elected spouse and child SBP coverage based on full retired pay 
prior to his 1 Jun 98 retirement.  The parties divorced on 
5 Jun 98, and in the Child Custody Marital Dissolution Agreement,  
incorporated in the divorce decree, the member agreed the 
applicant would receive survivor benefits from his military 
retirement.  There is no evidence either party submitted a valid 
election to change spouse to former spouse coverage during the 
required time following their divorce.  The youngest child lost 
eligibility in Jun 02 due to age.  

3.  The Defense Enrollment Eligibility Reporting System (DEERS) 
records show the member married his current spouse on 18 Nov 11, 
but he did not request that Defense Finance and Accounting Service 
Cleveland Center (DFAS-CL) establish SBP coverage on her behalf.  
The member's retired pay records erroneously reflected the 
applicant's name and date of birth (14 Nov 57) as the eligible 
spouse beneficiary and SBP premiums continued to be deducted from 
his retired pay until his 20 Dec 11 death.  The member’s current 
spouse is not eligible to receive an SBP annuity because the 
member died before the first anniversary of their marriage.  

4.  There is no evidence of Air Force error, and absent a 
competing claimant, we recommend the member's record be corrected 
to reflect that he elected to change SBP spouse to former spouse 
coverage based on full retired pay and named the applicant as the 
eligible former spouse beneficiary.  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 25 January 2013 for review and comment within 
30 days (Exhibit D).  To date, a response has not been received.  

________________________________________________________________

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.  After reviewing the 
evidence of record, we are persuaded that favorable 
consideration of the applicant’s request is warranted.  Based on 
the favorable recommendation rendered by the Air Force office of 
primary responsibility indicating that since the member did not 
request SBP coverage be terminated upon his divorce from the 
applicant, he intended for her to remain his SBP beneficiary.  
Therefore, in view of the above and absent a competing claimant, 
we recommend the member’s record be corrected as set forth 
below.  

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to MEMBER, be corrected to show that on 
6 June 1998, he elected former spouse and child coverage 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 this application 
in Executive Session on 31 July 2013, under the provisions of 
AFI 36-2603:

			, Panel Chair
			, Member
			, Member

The following documentary evidence was considered for AFBCMR 
Docket Number BC-2012-04943:

    Exhibit A.  DD Form 149 dated 5 October 2012, w/atchs.
    Exhibit C.  Letter, AFPC/DPFFF, dated 10 January 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 25 January 2013. 




                                   
                                   Panel Chair