RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03271

  	COUNSEL:  None 

		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

Her former husband's records be corrected to show he filed a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) and any SBP premium payments due be waived.

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APPLICANT CONTENDS THAT:

In accordance with the attached Divorce Settlement, her former husband should have changed the SBP coverage from Spouse to Former Spouse within 1 year of the divorce.  However, it was erroneously changed to No Beneficiary on 1 July 1994.  The divorce was finalized on March 1993.  She was not informed of the SBP change.  She truly believes the change was made erroneously and her former husband assumed that she would be informed by the Finance Center if there were a problem.

She understands that the SBP must be paid before she receives the Annuity payments.  However, she respectfully requests that this be waived due to her medical and financial situation.  She is undergoing dialysis treatments for kidney failure due to complications from Diabetes Type II.  When her former husband passed away on 19 July 2002, her former spouse income was terminated.  She is requesting assistance through the Social Security System and her total income is currently approximately $565 each month.  

In support of her request, applicant submits a marriage certificate, Divorce Settlement, SBP Information Sheet, Death Certificate, letter from her doctor, DD Form 1884, Application For Annuity under Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP), and DD Form 2789, Waiver/Remission of Indebtness Application.

Applicant's complete submission, with attachments,  is attached at Exhibit A.

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STATEMENT OF FACTS:

The member and applicant married on 17 October 1964 and the member elected spouse and child coverage based on a reduced level of retired pay prior to his 1 November 1986 retirement.  The parties divorced 11 March 1993 and the divorce decree awarded the SBP to the applicant; however, neither party submitted a valid election change within the required time period.  In September 1993, the Defense Finance and Accounting Service (DFAS) suspended the spouse portion of the SBP.  The youngest child (date of birth 6 January 1972) lost eligibility in June 1994.  The member died on 19 July 2002.  

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AIR FORCE EVALUATION:

AFPC/DPPTR reviewed this application and states that there is no error.  However, to preclude a possible injustice, we recommend the member’s record be corrected to reflect that on 12 March 1993, he elected to change SBP spouse and child to former spouse coverage based on the previous reduced level of retired pay, naming as the eligible beneficiary.  Approval should be contingent upon recoupment of appropriate premiums.  In the event relief is granted, the unpaid contributions to the SBP that should have been deducted from the member’s retired pay through the date of his death (approximately $9,100) will be collected from any annuity payment the applicant would be entitled to receive.

AFPC/DPPTR evaluation is provided at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 15 Nov 02 for review and comment.  As of this date, no response has been received by this office.

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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 warranting partial relief.  After thoroughly reviewing the circumstances of this case, it is the Board's opinion that the former spouse should receive SBP coverage at the reduced level of retired pay to comply with the divorce decree awarding the asset to her by the court.  Therefore, the Board accepts the opinion and recommendation from the Chief, Retiree Services Branch, and recommends that the records of the deceased member be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented warranting a waiver of the premiums due for the period September 1993 to July 2002.  In this respect, we note that the deceased member in order to continue his SBP coverage, based on the court decision, would have been required to pay the necessary premiums.  While we understand the applicant's medical and financial situation, the law requires that the premiums be paid.  In view of the above, we do not recommend favorable action on this portion of her application.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to FORMER MEMBER, be corrected to show that on 12 March 1993, he elected to change his SBP election from "spouse and child" coverage to "former spouse coverage" based on reduced level of retired pay, naming the eligible beneficiary.

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The following members of the Board considered Docket Number 02-0321 in Executive Session on 21 January 2003, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

     Exhibit A. DD Form 149, dated 2 Oct 2002, w/atchs.
     Exhibit B. Letter, AFPC/DPPTR, dated 14 Nov 02.
     Exhibit C. Letter, SAF/MIBR, dated 22 Dec 2000.

                                   

AFBCMR 02-03271

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT,be corrected to show that on 12 March 1993, he elected to change his SBP election from "spouse and child" coverage to "former spouse coverage" based on reduced level of retired pay, naming XXXX XXXX as the eligible beneficiary.