RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-05110
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
The deceased former members records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP), naming the applicant as the beneficiary.
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APPLICANT CONTENDS THAT:
The couples divorce decree, dated 6 Apr 95, states her ex-husband may not change his SBP, which named her as the beneficiary. He paid the premiums on the plan. It was only after his death on 14 Oct 12 that she found out his SBP had been suspended back on 26 May 95. She was never informed by either the Air Force or her attorney that she needed to do anything to maintain the SBP. The SBP should have never been allowed to be changed since the divorce decree clearly states it may not be changed.
The applicants complete submission, with attachments, is at Exhibit A.
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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.
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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. One of the following actions must be exercised within the first year following the 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. The former spouse is not eligible for annuity payments upon the members death even though a member fails to notify the Defense Finance and Accounting ServiceCleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword.
The member and the applicant were married on 4 Sep 58. The member retired for disability effective 8 May 71, and elected spouse only coverage based on full retired pay during the plan initial enrollment (21 Sep 72 to 20 Mar 74). The parties divorced on 26 May 95. The divorce decree stated the applicant should be considered as the members surviving spouse and prohibited him from changing the election or designation of the applicant as the SBP beneficiary. There is no evidence the member submitted an election to change spouse coverage to former spouse coverage within the first year of their divorce. Records maintained by the DFAS-CL reflect spouse coverage was suspended effective 26 May 95, and SBP premiums ceased at that time. There is no evidenced either party remarried; therefore, there is no competing claimant. The member died on 14 Oct 12. The current amount of the SBP monthly annuity is $2,265; however, release of payments would not be authorized until the retroactive premium debt of $45,801 (plus interest) is recovered. To deny the applicants request would be to deny her an asset awarded to her by the court.
The complete AFPC/DPFFF evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 11 Dec 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D).
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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 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.
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THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER MEMBER be corrected to show that on 27 May 1995, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the eligible former spouse beneficiary.
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The following members of the Board considered AFBCMR Docket Number BC-2012-05110 in Executive Session on 31 Jul 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 27 Oct 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPFFF, dated 13 Nov 12.
Exhibit D. Letter, SAF/MRBR, dated 11 Dec 12.
Panel Chair
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