RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00516
		INDEX CODE: 137.00

		COUNSEL:  None

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The records should be corrected based on the Decree of Divorce and the fact that neither his former spouse, nor he consented to the SBP being stopped.

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

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STATEMENT OF FACTS:

The applicant and B. were married on 24 April 1964.  The applicant prior, to his 1 March 1991 retirement, elected spouse only SBP coverage based on a reduced level of retired pay.  He and B. were divorced on 21 January 1999 and the divorce decree ordered that B. remain the SBP beneficiary.  There is no indication in the records that either the applicant or B. requested an election to change the SBP coverage from spouse to former spouse during the first year following their divorce.  The Defense Finance and Accounting Service (DFAS) learned of the applicant’s divorce and suspended spouse coverage retroactive to the date of the divorce.  The applicant married P. on 16 March 2001.  There is no indication the applicant notified the Defense Finance and Accounting Service (DFAS) of the change in his marital status or requested an election on his current wife’s behalf.

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AIR FORCE EVALUATION:

AFPC/DPPTR states that a spouse's eligibility as an SBP beneficiary terminates upon divorce.  There are two mechanisms provided by law for changing SBP coverage from spouse to former spouse, and both must be exercised within the first year following the divorce.  The servicemember can file an election change or the former spouse can request that the change be made on their behalf.  The former spouse upon requesting the change must submit legal documentation that the servicemember agreed to or that the court ordered the servicemember to establish former spouse coverage.  If an election is not made during the one-year eligibility period, former spouse coverage may not be established thereafter.

DPPTR recommends the applicant’s records be corrected to reflect he elected to change his SBP coverage from spouse to former spouse coverage based on reduced retired pay, naming B. as former spouse beneficiary

A complete copy of the Air Force evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 13 February 2004, for review and response.  As of this date, no response has been received by this office.

On 16 March 2004 and 30 April 2004, the Board staff forwarded the applicant copies of memorandums from HQ USAF/JAA, which will be considered in the processing of his application (Exhibits D & E).

The applicant submitted a notarized statement dated 22 March 2004 from his current spouse relinquishing her potential entitlement to SBP (Exhibit F).

A complete copy of the Applicant’s response is attached at Exhibit F.

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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 injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  Notwithstanding the opinions rendered by HQ USAF/JAA, after thoroughly reviewing the circumstances of this case, it is the opinion of the Board majority that the former spouse should receive the SBP annuity at the reduced level of retired pay to comply with the divorce decree awarding the asset to her by the court.  The majority notes the current spouse has provided a notarized statement relinquishing her entitlement to the SBP.  The majority is persuaded it was the applicant’s intent to provide his former spouse the SBP annuity and is satisfied his current spouse is fully aware she is relinquishing her entitlement to the annuity.  Therefore, the Board majority accepts the opinion and recommendation from the Air Force and recommends the applicant’s records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 22 January 1999, he elected under the Survivor Benefit Plan to change his coverage from “spouse” to “former spouse,” naming          as former spouse beneficiary, based on reduced retired pay.

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The following members of the Board considered AFBCMR Docket Number BC-2003-00516 in Executive Session on 14 April 2004 and 18 June 2004, under the provisions of AFI 36‑2603:

				Panel Chair
				Member
				Member

By majority vote, the Board recommended granting the application. Ms. Boockholdt voted to deny correcting the records but she does not desire to submit a Minority Report.  The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 31 Dec 03, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 6 Feb 04, w/atchs.
	Exhibit C.	Letter, SAF/MRBR, dated 13 Feb 04.
	Exhibit D.	Letter, AFBCMR, dated 16 Mar 04, w/atch.
	Exhibit E.	Letter, AFBCMR, dated 30 Apr 04, w/atch.
	Exhibit F.	Applicant’s Response, dated 22 Mar 04, w/atch.

					
					Panel Chair 

AFBCMR BC-2003-00516

MEMORANDUM FOR THE CHIEF OF STAFF

	Under the authority of Section 1552, Title 10, United States Code, Air Force Instruction 36-2603, and having assured compliance with the provisions of the above regulation, the decision of the Air Force Board for Correction of Military Records is announced, and it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXX, be corrected to show that on 22 January 1999, he elected under the Survivor Benefit Plan to change his coverage from “spouse” to “former spouse,” naming           as former spouse beneficiary, based on reduced retired pay.

			
			Director
			Air Force Review Boards Agency