RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-01582
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His former spouse be listed as his Survivors Benefit Plan (SBP)
beneficiary.
APPLICANT CONTENDS THAT:
He was not aware that he had to file paperwork within one year of
his divorce designating his ex-wife as his former spouse SBP
beneficiary. He continued to pay the SBP monthly premiums with
her listed as the beneficiary.
His former spouse remarried on 24 Jul 04 at the age of 51 and he
erroneously believed she was no longer entitled to SBP.
The Board should consider it in the interest of justice to
consider his untimely application as it would be a great injustice
if his former spouses present spouse were to die or they were to
divorce and she were not entitled to the SBP again.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 1 Aug 91, the applicant retired in the grade of Senior Master
Sergeant (SMSgt, E-8).
The applicant and his former spouse were married on 21 Aug 71.
They divorced on 23 Jul 98 per the divorce decree issued by the
State of Minnesota. The court ordered the applicant to designate
former spouse SBP coverage.
The applicants former spouse remarried on 24 Jul 04, prior to her
55th birthday (date of birth 28 May 53), per the marriage
certificate issued by Meeker County Treasurers Office,
Litchfield, MN.
According to a marriage certificate issued by the County of
Stearns, State of Minnesota, the applicant and his current spouse
married on 31 Dec 05.
The applicants current spouse provided a signed, notarized
affidavit dated 30 Apr 14 (Exhibit B), relinquishing any competing
interest she may have in the SBP benefit in favor of her spouses
former spouse.
AIR FORCE EVALUATION:
AFPC/DPFFF defers making a recommendation as there is another
potential SBP beneficiary. DPFFF states that former spouse
coverage is suspended if the former spouse remarries before age
55. Costs cease effective the first day of the month after the
month of remarriage. However, eligibility and premiums are
reinstated effective the first day of the month after the
disqualifying marriage terminates.
The applicant and his former spouse were married on 21 Aug 71 and
he elected spouse and child SBP coverage based on a reduced level
of retired pay prior to his 1 Aug 91 retirement. The youngest
child lost eligibility due to age effective 1 Jul 97. The parties
divorced on 23 Jul 98 and in the divorce decree, the applicant was
ordered to continue to pay the SBP premiums and request former
spouse coverage. However, there is no evidence either party
submitted a valid former spouse election within the one-year
period following their divorce as the law requires.
The applicants former spouse remarried on 24 Jul 04, prior to her
55th birthday. On 31 Dec 05, the applicant married his current
spouse. In Apr 08, after receiving a copy of his marriage
certificate, the Defense Finance and Accounting Service
Cleveland Center (DFAS-CL) updated his records to reflect his
current spouse and date of birth (9 Aug 46) as the eligible spouse
beneficiary.
A complete copy of the DPFFF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy the Air Force evaluation was forwarded to the applicant on
11 Jul 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. After thoroughly reviewing
the evidence of record, we believe that the applicant's records
should be corrected to reflect that he elected former spouse
coverage under the SBP within the required timeframe. We note that
the former member continued to pay the SBP premiums for years after
his divorce in 1998 which supports the belief that he did not
believe his former spouse was eligible for the SBP due to her
marriage before age 55. We also note that the current spouse has
provided a signed, notarized affidavit relinquishing her entitlement
to the SBP and we are satisfied his current spouse is fully aware
she is relinquishing her entitlement to the annuity. Therefore, it
is our opinion that the former spouse should receive the SBP annuity
based on a previous reduced level of retired pay to comply with the
divorce decree awarding the asset to her by the court. Accordingly,
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 the APPLICANT be corrected to show that on 22 Jul 99,
he elected former spouse coverage under the Survivor Benefit Plan
(SBP) based on a previous reduced level of retired pay, naming his
former spouse as the beneficiary.
The following members of the Board considered AFBCMR Docket Number
BC-2014-01582 in Executive Session on 28 Jan and 7 May 15 under
the provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
All members voted to correct the record as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 Apr 14, w/atchs.
Exhibit B. Affidavits, dated 30 Apr 14.
Exhibit C. Memorandum, AFPC/DPFFF, dated 10 Jun 14.
Exhibit D. Letter, SAF/MRBR, dated 11 Jul 14.
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