RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-05284
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
His records be corrected to reflect his former spouse be entitled to Survivor Benefit Plan (SBP) coverage representing forty-three (43%) percent of his retired pay, instead of fifty-five percent (55%).
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APPLICANT CONTENDS THAT:
He was advised that he could adjust his level of coverage once his divorce was finalized. His divorce decree reflects a level of coverage equal to 43 percent of his retired pay and he should be able to adjust his SBP coverage in accordance with the divorce decree.
The applicants complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:
On 30 June 2012, the applicant was relieved from active duty and retired, effective 1 July 2012, and was credited with 30 years and 29 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.
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AIR FORCE EVALUATION:
AFPC/DPFFF recommends denial, indicating there is no evidence of an error or injustice. The applicant and his former spouse were married at the time he made his SBP election for spouse and child coverage based on full retired pay. The parties later divorced on 23 October 2012 and their separation agreement indicates the applicant will ensure there is sufficient SBP apportioned to his former spouse to replace her 43% share of his military retirement in the event he pre-deceases her. On 5 November 2012, Defense Finance and Accounting Service (DFAS) Cleveland (CL), received the applicants valid election to convert his SBP coverage from spouse to former spouse coverage. However, DFAS-CL does not have the authority to adjust the SBP base amount in accordance with the separation agreement. The law controlling the SBP does not permit the base amount to be changed-lowered or increasedwhen a retired member with spouse or spouse and child coverage in effect, converts said coverage to former spouse coverage. Although the applicant stated he was told he could change the amount of the SBP coverage negotiated in his settlement, he acknowledged by signature on 7 March 2012 that he had been briefed on and understood the provisions of the SBP. Specifically, the level of coverage (base amount) cannot be changed because of a divorce. Since the properly established maximum SBP coverage was requested at the time of retirement, the election to convert his coverage from spouse and child to former spouse could not be established on a lower base amount.
A complete copy of the AFPC/DPSIAR evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant notes his awareness of several options available in that SBP benefits can be changed after retirement. It was clear to both him and his former spouses lawyer that SBP eligibility could be changed and/or terminated. The base amount of SBP became part of the negotiated settlement between their lawyers, along with other community property. In accordance with their negotiated agreement and division of marital property and debts, they agreed that he would ensure sufficient SBP coverage to replace her 43 percent share of his military retirement in the event he pre-deceases her. His and his former spouses signature, along with their respective lawyers signatures on the separation agreement, is evidence of an agreement to reduce the SBP coverage. Furthermore, the Court concurred and approved their negotiated agreement. Otherwise, as previously mentioned, he could have terminated participation in SBP on the second anniversary of his retirement. Through fairness and common sense, all the official documentation provided clearly indicates the courts intent to provide 43 percent SBP coverage to his former spouse.
A complete copy of the applicants response is at Exhibit E.
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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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicants complete submission, including his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While the applicant argues the provisions of his divorce decree related to the base amount of his SBP coverage constitute a legal agreement between the parties and should therefore be enforced, there is no basis in law to adjust the base amount of SBP coverage when converting spouse coverage to former spouse coverage upon divorce. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.
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THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
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The following members of the Board considered AFBCMR Docket Number BC-2012-05284 in Executive Session on 29 August 2013, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05284 was considered:
Exhibit A. DD Form 149, dated 5 November 2012, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPFFF, dated 5 February 2013.
Exhibit D. Letter, SAF/MRBR, dated 24 February 2013.
Exhibit E. Letter, Applicant, dated 8 March 2013, w/atchs.
Panel Chair
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