RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02543
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
She be named the former spouse beneficiary on her deceased ex-husbands Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
She was not aware that, after their divorce, her ex-husband had not submitted the required forms to make her the former spouse beneficiary on his SBP.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The deceased former member served in the Regular Air Force in the grade of Master Sergeant (E-7).
According to the documents submitted by the applicant:
a. On 22 Jun 52, the applicant and the now deceased former member were married, and he elected spouse-only SBP coverage based upon a reduced level of retired pay.
b. On 1 Mar 73, the deceased former member voluntarily retired, and was credited with 20 years and 22 days of total active service.
c. On 24 Jun 94, the applicant and the deceased former member divorced.
d. On 6 Jun 14, the deceased former member passed away.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends relief be granted indicating there is evidence of an injustice. A persons 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. If the latter case, the former spouse must provide legal documentation showing 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. Even though a member fails to notify the Defense Finance and Accounting ServiceCleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the members death.
On 24 Jun 94, the applicant and the former member divorced, however, there is no evidence that the former member submitted a valid election to change his SBP coverage from spouse-only to former spouse coverage within the first year of their divorce as the law requires. The former member also did not report his three post-retirement marriages and divorces to DFAS, or request his SBP coverage be established for any of his post-service spouses. SBP premiums continued to be deducted from the former members retired pay until 1 Oct 08, when he became paid up. The applicant continued to be erroneously reflected as the eligible spouse beneficiary in the DFAS records. The fact the member did not request SBP coverage be terminated following his divorce from the applicant, and he did not request SBP coverage be established in the name of any of the three women he married after he completed military service, indicates he intended for the applicant to remain his SBP beneficiary. While there is no evidence on an Air Force error, absent a competing claimant, recommend the members record be corrected to reflect that on 25 Jun 94, he elected to change his SBP spouse-only coverage to former spouse coverage based on the previously reduced level of retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 25 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 timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicants complete submission in judging the merits of the case. While the Board notes the recommendation of AFPC/DPFFF, the applicants divorce decree is silent on SBP and we are therefore not convinced the applicant has proper standing. In addition, neither the applicant nor her former spouse applied for former spouse coverage within one year of the date of the divorce as required by law. Therefore, the applicant was not the legal beneficiary during the full period of time during which payments were made on the policy. As a result, the deceased members estate is a competing interest for the benefits the applicant seeks in that the premiums paid into the program could potentially be refunded to the deceased former members estate. The Board does not grant cases where competing interests exist, except under extraordinary circumstances. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
The following members of the Board considered AFBCMR Docket Number BC-2014-02543 in Executive Session on 6 May 15 under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02543 was considered:
Exhibit A. DD Form 149, dated 19 Jun 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPFFF, dated 29 Jul 14.
Exhibit D. Letter, SAF/MRBR, dated 25 Aug 14.
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