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AF | BCMR | CY2014 | BC 2014 01225
Original file (BC 2014 01225.txt) Auto-classification: Approved
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:			DOCKET NUMBER:  BC-2014-01225
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

Her late ex-husband’s records be corrected to reflect he changed 
his Survivor Benefit Plan (SBP) from former spouse coverage under 
the insurable interest option to former spouse coverage authorized 
by Public Law (PL) 99-145.


APPLICANT CONTENDS THAT:

When she and the deceased former member divorced he was mandated 
by the court to provide SBP coverage for her as a former spouse.  
The former member had the opportunity to change his election from 
insurable interest to former spouse coverage but did not do so; 
however, in Feb 87 the Defense Finance and Accounting Service 
(DFAS) pay center sent her attorney a letter verifying her former 
spouse did in fact have former spouse SBP deducted from his Air 
Force retirement pay.  If this were true, she should be drawing 
the former spouse annuity and not the insurable interest annuity.  
This correction would allow her to draw the full 55 percent versus 
the 45 percent that she currently receives.

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


STATEMENT OF FACTS:

According to the documentation submitted by the applicant, her ex-
husband passed away on 29 Dec 13, and, to date she has not 
remarried.  However, the deceased former member was married to 
someone other than the applicant at the time of his death.

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




AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval, indicating that while there is no 
evidence of an error on the part of the Air Force, the applicant 
is the victim of an injustice.  PL 97-252 (8 Sep 82) permitted 
retiring members to provide SBP coverage for their former spouses 
under the insurable interest option.  However, the cost was more 
expensive than the costs for spouse coverage (at least 10 percent 
for each full five-year period the beneficiary is younger than the 
member, up to a maximum of 40 percent of retired pay).  In 
addition, the SBP payment to former spouses under the insurable 
interest option is 55 percent of the gross retired pay remaining 
after the monthly premium is deducted.  Marriage at any age does 
not affect a former spouse’s eligibility to receive SBP payments 
under the insurable interest type of coverage.  Subsequently, PL 
98-525 (19 Oct 84) authorized former spouses to request an SBP 
election be deemed on their behalf if the member agreed and the 
court order incorporated that agreement.

PL 99-145 (8 Nov 85, but effective 1 Mar 86) permitted members, 
who had previously elected insurable interest coverage for their 
former spouses, a one-year opportunity (8 Nov 85 – 7 Nov 86) to 
change to former spouse coverage with the same costs and 
provisions of spouse coverage.  The statute required the former 
spouse’s written concurrence in the change.  Marriage before age 
55 suspends a former spouse’s eligibility to receive SBP payments 
if the election is made under the provisions of PL 99-145.

The applicant and deceased former member were married on 
15 Feb 58, and the record reflects the member elected spouse only 
SBP coverage based on a reduced level of retired pay prior to his 
1 Feb 74 retirement.  The parties divorced on 5 May 83 and the 
divorce decree was silent on SBP.  Nevertheless, the 18 Jul 86, 
microfiche records show former spouse coverage was established 
under the insurable interest option.  The deceased former member 
remarried on 2 Jun 83; however, the widow is not eligible for the 
SBP because the applicant is the valid former spouse beneficiary.  
Former spouse insurable interest SBP premiums were deducted from 
the member’s retired pay until 1 Oct 08, when the paid-up SBP 
provision became effective.  The former member died on 29 Dec 13.  
The applicant is currently receiving an SBP monthly annuity of 
$906, based on the insurable interest option.

It is recommended that the deceased former member’s record be 
corrected to reflect that on 1 Mar 86, he elected to change SBP 
former spouse coverage under the insurable interest option to 
former spouse coverage under the spouse coverage option, naming 
the applicant as the eligible former spouse beneficiary, and she 
concurred in the change.  This date is the earliest date former 
spouse coverage with the same options as spouse coverage could 
have been established.
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 4 Aug 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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate 
the existence of an error or injustice.  We took notice of the 
applicant's complete submission in judging the merits of the case 
and agree with the opinion and recommendation of the Air Force 
office of primary responsibility (OPR) and adopt its rationale as 
the basis for our conclusion that it is in the interest of justice 
to grant the relief sought.  Therefore, we recommend the deceased 
former member'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 DECEASED FORMER MEMBER be corrected to show that 
on 1 March 1986, he elected to change SBP former spouse under the 
insurable interest option to former spouse coverage under the 
spouse coverage option, naming the applicant as the eligible 
former spouse beneficiary, and she concurred in the change.


The following members of the Board considered AFBCMR Docket Number 
BC-2014-01225 in Executive Session on 6 May 15, under the 
provisions of AFI 36-2603:

	All members voted to correct the records as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket Number 
BC-2014-01225 was considered:

	Exhibit A.  DD Form 149, dated 6 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 25 Jun 14.
	Exhibit D.  Letter, SAF/MRBR, dated 4 Aug 14.

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