RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	  DOCKET NUMBER:  BC-2014-00338
		 	  COUNSEL:  NONE
   	 		  HEARING DESIRED: YES
 

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APPLICANT REQUESTS THAT:

She be designated as the former spouse beneficiary under the 
Survivor’s Benefit Plan (SBP).  

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APPLICANT CONTENDS THAT:

She and the decedent divorced after 67 years of marriage.  On 
1l Jan 13, she learned the SBP designation was never changed to 
“former spouse.” 

There was never any mention during the divorce proceedings that 
a separate form to change SBP beneficiary to former spouse was 
required.  Her former spouse had dementia and was not aware a 
change to the SBP beneficiary was required.  He paid SBP 
premiums for over 30 years and would not have wanted her to be 
deprived of what they worked so hard for.

She is 94 years old and in failing health and is counting on her 
SBP to pay for her care and final expenses.  

In support of her request, the applicant provides copies of a 
Congressional inquiry, death certificate, divorce decree and 
various other documents associated with her request.

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

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STATEMENT OF FACTS:

On 28 Feb 42, the parties were married.  

On 1 Mar 72, the decedent retired from the Air Force and elected 
spouse only SBP coverage based on full retired pay during the 
Plan’s initial open enrollment period (21 Sep 72 – 20 Mar 74) 
authorized by Public Law (PL) 92-425.  
  
The parties divorced on 9 Jul 09, and the decedent died on 
11 Jan 13.  According to the unexecuted divorce decree submitted 
by the applicant, the decedent was ordered to designate the full 
SBP annuity to his former spouse.  

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AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval.  As background, a person’s 
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.  

Despite the decedent’s 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.  To deny the 
applicant’s request would be to deny an asset awarded to her by 
the court.  Absent a competing claimant, DPFFF recommends the 
decedent’s record be corrected to reflect that on 10 Jul 09, he 
submitted a valid election for 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.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Her former spouse passed away on 11 Jan 13.  He was diagnosed 
with dementia in Jun 06.  Due to the divorce, she is now known 
as “former spouse.”  Counsel for both sides assured her that 
everything was in place and all forms necessary for continuation 
of SBP were filed with appropriate agencies.  It was upon 
contacting the Defense Finance and Accounting Service (DFAS) 
after his death that she learned that the required document was 
not submitted.  It has now been almost 6 months since her 
initial contact with the Air Force regarding her application.  
Her savings have been depleted, her social security has been 
reduced and she is behind on her bills.  She cannot afford to 
survive much longer without a resolution in her favor, awarding 
her what is rightfully hers.  She hopes this matter will be 
resolved shortly.  
The applicant’s complete submission 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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice warranting 
relief.  After carefully reviewing this application, we agree 
with the recommendation of the Air Force office of primary 
responsibility (OPR) and agree with some of the rationale 
expressed as the basis for our decision that the applicant has 
been the victim of an error or an injustice.  We note two 
issues, however.  First, the OPR’s advisory left open the 
question of the decedent’s marital status at death.  
Nonetheless, we find the death certificate and public obituary 
sufficient to conclude that the decedent died without a spouse.  
Therefore, the possibility of a competing interest is 
eliminated.  Second, we note that the divorce decree submitted 
by the applicant was not final, as it was not executed by both 
parties and the court.  Even without the decree, we find the 
evidence considered by this panel sufficient to conclude that 
the decedent intended that his former spouse receive SBP.  The 
OPR advisory stated: “Spouse SBP premiums were deducted from the 
member's retired pay until 1 Oct 08, when the paid-up SBP 
provision became effective. DFAS-CL records continued to 
erroneously reflect the applicant's name as the eligible spouse 
beneficiary.”  Though evidence of possible dementia makes it 
difficult for this panel to conclude the decedent’s intentions 
without doubt, we find that 30 years of SBP payments in the 
applicant’s name as beneficiary make it more likely than not the 
decedent intended applicant to receive the benefit.  
Accordingly, we recommend the applicant’s record be corrected as 
indicated below.  

4.  The applicant’s 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.  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to DECEDENT be corrected to show that on 10 Jul 
09, 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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2014-00338 in Executive Session on 15 Oct 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-2014-00338 was considered:

	Exhibit A.  DD Form 149, dated 24 Jan 14, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 21 Mar 14.
        Exhibit C.  Letter, Applicant, dated 21 Apr 14, w/atch.    
        Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 14.  
        Exhibit E.  Letter, Applicant, dated 26 Jun 14.