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AF | BCMR | CY2013 | BC 2013 05605
Original file (BC 2013 05605.txt) Auto-classification: Approved
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05605
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

His records be corrected to void his election for former spouse 
coverage under the Survivor Benefit Plan (SBP).


APPLICANT CONTENDS THAT:

He and his former spouse submitted an election for former spouse 
coverage at the same time in error.  It was not their intention 
to elect former spouse coverage.  There was no agreement for 
former spouse coverage in their divorce decree.  He believes the 
wording of Former Spouse questions confused him and his former 
spouse, and the stress of the divorce affected their decision 
making.

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


STATEMENT OF FACTS:

On 15 Jan 15, the Board staff requested the applicant provide a 
notarized statement from his former spouse relinquishing her 
entitlement to the SBP annuity.  On 20 Jan 15, the applicant’s 
former spouse provided a notarized statement relinquishing her 
rights to any entitlements she was granted while married to the 
applicant.  A review of the notarized statement found it to be 
inadequate and the applicant was asked to have his former spouse 
complete a signed notarized release of benefits affidavit.  On 
12 May 15, the applicant provided the signed notarized release 
of benefits affidavit from his former spouse.

The remaining facts pertaining to this application are described 
in the memorandum prepared by the Air Force office of primary 
responsibility (OPR), which is included at Exhibit C.


AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the requested relief.  A spouse's 
eligibility to receive an SBP annuity terminates upon divorce.  
However, there are two mechanisms for changing spouse coverage 
to former spouse coverage.  The service member may file and 
election change or the former spouse may request the service 
member be deemed to make an election on his or her behalf.  The 
former spouse must provide legal documentation the service 
member agreed, or the court ordered the service member, to 
establish former spouse coverage.  If the service member 
voluntarily files an election for former spouse coverage, a 
request to change that election to spouse coverage may be made 
at any time after the service member remarries.  The former 
spouse coverage is terminated when the spouse becomes an 
eligible beneficiary.  There was no court ordered requirement 
for the applicant to elect former spouse coverage.  Furthermore, 
it is reasonable to assume the applicant did not fully 
understand the effects of electing former spouse coverage when 
his intent was to suspend spouse coverage.  

The applicant elected spouse only coverage under SBP based on 
full retired pay prior to his 1 Oct 10 retirement.  His spouse 
was also a retired service member.  The parties divorced on 
2 Feb 13 and the Marital Settlement Agreement (MSA) incorporated 
into the divorce decree was silent on SBP.  On 22 Feb 13, they 
notified the SBP counselor at Tyndall AFB, FL that they both had 
inadvertently completed the forms to voluntarily change the 
spouse coverage to former spouse coverage.  The Defense Finance 
and Accounting Service – Cleveland Center (DFAS-CL) changed the 
applicant’s record to reflect his former spouse as the eligible 
former spouse beneficiary.  Upon realizing they completed the 
incorrect election forms, the applicant and his former spouse 
completed the necessary paperwork to suspend their spouse 
coverage.  DFAS-CL denied the applicant’s request because his 
former spouse coverage request had already been processed.  The 
applicant’s former spouse request to suspend spouse coverage was 
honored.  DFAS-CL records continue to reflect the applicant’s 
former spouse as the eligible former spouse beneficiary.

A complete copy of the 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 21 Jul 14 for review and comment within 30 days 
(Exhibit D).  As of this date, no response has been received by 
this office.


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.  After a thorough 
review of the evidence of record and the applicant’s complete 
submission, we believe that corrective action is warranted.  
While we concur with the OPR’s recommendation to correct the 
applicant’s record to reflect that he submitted a valid election 
to suspend spouse coverage under the survivor benefit plan 
(SBP), we believe the effective date of the election should be 
2 Feb 13, instead of 1 Apr 13 as AFPC/DPFFF recommends.  In this 
respect, we note that under the laws that govern SBP, spouse 
coverage terminates upon divorce.  As the applicant and his 
spouse were divorced on 2 Feb 13, we believe it would be 
appropriate to recommend correcting the record to reflect that 
the applicant submitted a valid election to suspend spouse 
coverage on 2 Feb 13.  Therefore, we recommend the applicant’s 
records 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 reflect the 
following:

	a.  On 2 February 2013, he submitted a valid election to 
suspend spouse coverage under the Survivor Benefit Plan.

	b.  The DD Form 2656-1, Survivor Benefit Plan Election 
Statement for Former Spouse Coverage, dated February 22, 2013, 
be declared void and removed from his records.


The following members of the Board considered AFBCMR Docket 
Number BC-2013-05605 in Executive Session on 17 Feb 15 and 
15 May 15 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

?
All members voted to correct the records as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-05605was considered:

	Exhibit A.  DD Form 149, dated 3 Dec 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 19 Feb 14.
	Exhibit D.  Letter, SAF/MRBR, dated 21 Jul 14.
	Exhibit E.  Letter, AFBCMR, dated 15 Jan 15, w/atchs.
	Exhibit F.  Letter, Former Spouse, dated 20 Jan 15.
	Exhibit G.  Affidavit, Survivor Benefit Program – Release 
	            of Benefits, dated 13 May 15.

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