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-husbands 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 applicants 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 spouses 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
spouses written concurrence in the change. Marriage before age
55 suspends a former spouses 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 members 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 members 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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