RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-03410
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
Her deceased former husbands records be corrected to reflect that he elected former spouse coverage under the Survivor Benefit Plan (SBP), naming her as the former spouse beneficiary.
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APPLICANT CONTENDS THAT:
At the time of their divorce, 30 Nov 12, her deceased former husband did not take any action to convert his SBP coverage to former spouse coverage. Prior to their divorce being finalized, her deceased former husband made it clear via e-mails that she would remain the SBP beneficiary and the fact that he continued to have the SBP premiums deducted from his retired pay substantiates this.
The applicants complete submission, with attachments, is at Exhibit A.
_________________ ______________________________________________
STATEMENT OF FACTS:
On 11 Jun 83, the applicant and the deceased former member were married.
On 31 May 03, the deceased former member was released from active duty and retired, effective 1 Jun 03.
On 30 Nov 12, the applicant was divorced from the deceased former member.
On 3 Jul 13, the former member passed away. Because the former member passed away within a year of his divorce to the applicant, there can be no competing beneficiary because a subsequent spouse cannot attain eligibility for SBP benefits in their own right until one year after the date of the marriage
The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR) which is included at Exhibit C.
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AIR FORCE EVALUATION:
AFPC/DPFFF recommends the applicants request be granted. The applicant and the member were married on 11 Jun 83. The member elected spouse and child SBP coverage based on full retired pay prior to his 1 Aug 03 retirement. The parties divorced on 30 Nov 12; however, the Separation Agreement incorporated in the divorce decree did not address the SBP. There is no evidence the member submitted a valid election to voluntarily convert his spouse coverage to former spouse coverage within the first year following their divorce as the law requires.
While the deceased former member failed to submit an election to establish former spouse coverage prior to his death, he did not request the applicants coverage be terminated and his willingness to allow SBP premiums to be deducted from his retired pay after his divorce is indicative of his intention to maintain the applicant as the eligible SBP Beneficiary.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 6 Jan 14 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 error or 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 corrective action is warranted. While there is no evidence of an error on the part of the Air Force, based on the evidence provided, it is apparent to us the deceased former member intended to establish the applicant as the former spouse beneficiary, but, for whatever reason, neglected to do so. Therefore, in view of the fact that there is no competing beneficiary, we believe it would be in the interest of justice to recommend the deceased former members records 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 1 Dec 12, he submitted a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming the APPLICANT as the former spouse beneficiary.
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The following members of the Board considered AFBCMR Docket Number BC-2013-03410 in Executive Session on 29 May 14, 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 15 Jul 13, w/atchs.
Exhibit B. Deceased's Available Military Personnel Records
Exhibit C. Letter, AFPC/DPFFF, dated 23 Sep 13.
Exhibit D. Letter, SAF/MRBR, dated 6 Jan 14
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