RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00167
COUNSEL: NONE
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
She be designated as the former spouse beneficiary under the
Survivors Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
She and her attorney believed she would receive SBP benefits
upon the death of her former spouse.
The Retiree Account Statement (RAS) lists her as the SBP
beneficiary.
In support of her request, the applicant provides copies of a
letter from the Defense Finance and Accounting Service (DFAS),
order of court, death certificate and various other documents
associated with her request.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
According to the Defense Enrollment Eligibility Reporting System
(DEERS) database the applicants spouse Date of birth (DOB) is
12 Dec 57. It also reflects that the parties married 23 May 87.
According to the Judgment of Absolute Divorce, filed on 28 Jul
11, the parties were divorced on 27 Jul 11.
According to the death certificate provided by the applicant
with a file date of 9 Sep 13, the decedent died on 2 Sep 13 and
did not have a surviving spouse.
According to an e-mail from DFAS-CL dated 5 Jan 15, the SBP
premiums for 1 Jul 11 through 31 Aug 13 were refunded along with
the Arrears of Pay (AOP) to the decedents mother who was listed
as the beneficiary.
___________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. As background, 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 taken within the first year following 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 the member agreed, or
the court ordered the member to establish former spouse
coverage. If neither the member nor the former spouse requests
the election change during the one-year eligibility period,
former spouse coverage may not be established thereafter.
The parties divorced on 27 Jul 11, and the divorce decree
ordered the service member to designate the applicant as the SBP
beneficiary. The youngest child lost eligibility due to age
effective 1 Sep 11. There is no evidence either party submitted
a valid election to change spouse to former spouse coverage
within the one year following their divorce. Despite the
decedents failure to submit a valid former spouse election
change, he did not request coverage for the applicant to be
terminated following their divorce, indicative of his intent for
her to remain eligible for his SBP. DFAS-CL records continued
to reflect the applicants name and DOB as the eligible spouse
beneficiary and premiums continued to be deducted from the
service members retired pay until his 2 Sep 13 death. There is
no evidence either party remarried, and accordingly, there is no
competing claimant. There is no evidence of Air Force error in
this case and absent a competing claimant, DPFFF recommends the
decedents record be corrected to reflect that on 28 Jul 11, he
elected to change SBP spouse to former spouse coverage based on
full retired pay naming the applicant as the eligible
beneficiary. Approval should be contingent upon recovery of any
applicable premiums.
The complete DPFFF evaluation is at Exhibit B.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 21 Mar 14, a copy of the Air Force evaluation was provided to
the applicant for review and comment within 30 days (Exhibit C).
As of this date, this office has not received a response.
________________________________________________________________
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 warranting
relief. We note the Office of Primary Responsibility (OPR)
states that absent a competing claimant, they recommend granting
the requested relief. As such, we find the death certificate
provided by the applicant sufficient to conclude that the
decedent was not married at the time of his death. Therefore,
we agree with the recommendation of the Air Force OPR and adopt
the rationale expressed as the basis for our decision that the
applicant has been the victim of an error or an injustice.
Accordingly, we recommend the applicants record be corrected as
indicated below.
4. The applicants case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issue involved.
Therefore, the request for a hearing is not favorably
considered.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to DECEDENT be corrected to show that on 28 Jul
11, he elected to change his SBP spouse coverage to former
spouse coverage based on full retired pay naming the APPLICANT
as the former spouse beneficiary, contingent upon recoupment of
any applicable premiums.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2014-00167 in Executive Session on 22 Nov 14, under
the provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
All members voted to correct the records as recommended. The
following documentary evidence pertaining to AFBCMR Docket
Number BC-2014-00167 was considered:
Exhibit A. DD Form 149, dated 8 Jan 14, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 12 Mar 14.
Exhibit C. Letter, SAF/MRBR, dated 21 Mar 14.
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