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AF | BCMR | CY2014 | BC 2014 00712
Original file (BC 2014 00712.txt) Auto-classification: Approved
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:		DOCKET NUMBER:  BC-2014-00712

	                 (DECEASED)		COUNSEL:  NONE
	
	                   (APPLICANT)		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to reflect that he 
elected “Former Spouse” coverage under the Survivor Benefit Plan 
(SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

She should be entitled to receive the SBP annuity paid for by 
the decedent, because her attorney failed to properly represent 
her.

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

________________________________________________________________

STATEMENT OF FACTS:

According to the divorce decree provided by the applicant, on 
7 Nov 93, she and the decedent were married and on 25 May 10, 
they were divorced.

According to the Certificate of Death provided by the applicant, 
on 14 Oct 13, her former husband passed away.

The applicant submitted a notarized Marital Status Affidavit, 
dated 15 May 14, indicating her marital status as “not married” 
and the decedent as “did not remarry.”

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval, indicating there is no record of 
an Air Force error.  However, despite the decedent’s failure to 
submit a valid former spouse election change, he did not 
terminate the applicant’s coverage following their divorce.  
This is 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. 

A person's eligibility as an SBP spouse beneficiary terminates 
upon divorce; however, the law provides two mechanisms for 
changing spouse coverage to former spouse coverage.  Both must 
be exercised 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 one­year eligibility period, former spouse 
coverage may not be established thereafter.  Even though a 
member fails to notify the Defense Finance and Accounting 
Service-Cleveland Center (DFAS-CL) of the divorce and continues 
to pay SBP premiums afterwards, the former spouse is not 
eligible for annuity payments upon the member's death.

The court order awarded the applicant the SBP and DFAS-CL 
records continued to reflect the applicant’s name as the 
eligible spouse beneficiary and SBP premiums continued to be 
deducted from the member's retired pay until his 14 Oct 
13 death.

The complete DPFFF evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 8 May 14 for review and comment within 30 days.  As 
of this date, no response has been received by this office 
(Exhibit D).

________________________________________________________________

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.  Having 
carefully reviewed this application, we agree with the 
recommendation of the Air Force office of primary responsibility 
and adopt the rationale expressed as the basis for our decision 
that the applicant has been the victim of either an error or an 
injustice.  Accordingly, in the interest of justice, 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 DECEDENT be corrected to show that on 26 May 
10, he elected former spouse coverage under the Survivor Benefit 
Plan, based on full retired pay naming the APPLICANT as the 
beneficiary, contingent upon recovery of any applicable 
premiums. 

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2014-00712 in Executive Session on 17 Feb 15, under 
the provisions of AFI 36-2603:

	                   , Vice Chair
	                 , Member
	                        , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 1 Feb 14, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 24 Apr 14.
	Exhibit C.  Letter, SAF/MRBR, dated 8 May 14.


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