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 applicants 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 applicants
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
applicants 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 applicants request because his
former spouse coverage request had already been processed. The
applicants former spouse request to suspend spouse coverage was
honored. DFAS-CL records continue to reflect the applicants
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 applicants complete
submission, we believe that corrective action is warranted.
While we concur with the OPRs recommendation to correct the
applicants 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 applicants
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.
AF | BCMR | CY2014 | BC 2014 01582
The Board should consider it in the interest of justice to consider his untimely application as it would be a great injustice if his former spouses present spouse were to die or they were to divorce and she were not entitled to the SBP again. The applicant and his former spouse were married on 21 Aug 71 and he elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Aug 91 retirement. Exhibit D. Letter, SAF/MRBR, dated 11 Jul 14.
AF | BCMR | CY2013 | BC 2013 00927
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AF | BCMR | CY2014 | BC 2014 03524
The Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant requested spouse and child SBP coverage based on full retired pay prior to his 1 Nov 06 retirement. It is unfortunate that the applicant failed to notify DFAS in a timely manner of his marriage, in order to preclude a debt or to deny SBP coverage for her. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 5 Mar 15, he states his spouse provided a letter relinquishing the SBP benefit.
AF | BCMR | CY2014 | BC 2014 02386
In support of her request, the applicant provides a personal statement, copies of the former members death certificate, divorce decree, Separation and Property Settlement Agreement, marital status affidavit and various other documents associated with her request. None of the documents the applicant provided (Separation and Property Agreement or QDRO) had language that would entitle her to deem former spouse SBP coverage. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her attorney submitted...
AF | BCMR | CY2014 | BC 2014 00195
APPLICANT CONTENDS THAT: In a two-page brief, through counsel, the applicant contends the following: Her former spouse intended for her to be the SBP beneficiary from the date of their divorce on 18 May 99, to the date of his death. The Board should consider her untimely application in the interest of justice because she did not discover the error until after the death of her former spouse. There is no evidence of Air Force error in this case and absent a competing claimant, we recommend...
AF | BCMR | CY2013 | BC 2013 03972
In the Separation and Property Settlement Agreement, which was incorporated in the divorce decree, the former service member agreed the applicant would receive the former spouse annuity. There is no evidence the former service member or the applicant submitted a valid election for former spouse coverage within one year following their divorce as required by law. We took notice of the applicants complete submission in judging the merits of the case; however, based on the evidence...
AF | BCMR | CY2014 | BC 2014 02658
The service member responded with a signed and notarized affidavit, dated 29 July 2014, which indicates he is currently married effective 16 November 2002 and his current spouse did not complete a Release of Benefits (Exhibit C). He did not request SBP benefits for his current spouse because he did not know that she was eligible. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or an injustice; the application was...
AF | BCMR | CY2013 | BC 2013 05896
Also, there is no evidence DFAS received a request from the applicant deeming a SBP election during the first year following the divorce. Subsequently, on 14 September 2012, a second DD Form 2656-10 was forwarded to DFAS; however, DFAS did not honor the applicants request because the 16 June 2011 court order was dated after the members retirement date. The member elected SBP coverage for his former spouse a month prior to establishing SBP coverage for his current spouse.
AF | BCMR | CY2014 | BC 2014 00389
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00389 COUNSEL: NONE (DECEASED SERVICE MEMBER) HEARING DESIRED: NO (APPLICANT) APPLICANT REQUESTS THAT: Her deceased former spouses records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP), naming her as the former spouse beneficiary. The remaining relevant facts pertaining to this application are described in the...
AF | BCMR | CY2013 | BC-2013-01181
The parties divorced on 23 Jan 1987, and the divorce decree ordered the conversion of the SBP annuity. However, we also note that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by the law. Exhibit D. Letter, SAF/MRBC, dated 31 Oct 2013, w/atch.