RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03233
		INDEX CODE: 137.00, 137.01

		COUNSEL:  

		HEARING DESIRED:  YES

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This application for correction of the records of APPLICANT was submitted by Mrs.   (former spouse).

APPLICANT REQUESTS:

Corrective action showing that the former member elected former spouse coverage rather than spouse coverage under the Survivor Benefit Plan (SBP).
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APPLICANT CONTENDS THAT:

Counsel states that, prior to the former member’s retirement from the Air Force, he elected SBP coverage for “spouse and child.”  On 29 December 1983, the member and applicant divorced and their divorce decree incorporated a settlement agreement wherein the applicant would receive “all (100%) of the Husband’s Survivor benefits that can be paid to a former spouse.”  The Defense Finance and Accounting Service (DFAS) was not notified to change the existing SBP spouse coverage to former spouse coverage, naming   as the beneficiary.

The former member married   in November 1994 and SBP premiums were continuously deducted from the former member’s retirement pay until he passed away on 17 July 2004.  Since the former member’s SBP paperwork still provided for “spouse” coverage, his spouse was technically the beneficiary.

On 22 September 2000, the applicant initially applied to the Board to have the SBP election changed to former spouse; however, it was returned to her without prejudice.  The applicant was provided a copy of a HQ USAF/JAG opinion.  With regard to the JAG opinion, counsel claims that a “court of competent jurisdiction” already has determined the applicant’s entitlement to the SBP benefits she seeks -- when the Circuit Court incorporated the Settlement Agreement into the Final Decree of Divorce.    (the technical SBP beneficiary) formally foregoes any interest in any SBP annuity on the former member’s account.  This magnanimous act is consistent with the fact that   has not applied for SBP payments since the former member’s death, and corroborates that all understood the former member’s intent that the applicant be the beneficiary of that annuity.

Neither the applicant nor the former member knew that any affirmative action was required in order to maintain her pre-existing SBP coverage.   ’s waiver should resolve the concern expressed by USAF/JA without the need for additional and costly litigation, and allow this Board to honor the former member’s intent that his former spouse be his SBP beneficiary.

Counsel states that, if the technical requirements of the SBP had been known, either the applicant or the former member would certainly have notified the Air Force to change the coverage from “spouse” to “former spouse.”  The issue now is whether such notification should be deemed to have been made.  Technicalities should not overshadow propriety; injustice should not be swept under the rug.  This is not a case where granting the applicant’s request would frustrate the former member’s wishes or interfere with   ’s legal right to benefits.

In support of her request, the counsel submits a Brief, with attachments.  The complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant was married to   on 16 March 1958.  Prior to his 1 September 1974 retirement, he elected spouse and child coverage based on a reduced level of retired pay.  The applicant and   were divorced on XXXXXXXXX and the property settlement contained the former member’s agreement to irrevocably maintain SBP coverage on the applicant’s behalf.  There is no indication in the records that either the former member or the applicant submitted a request to change the SBP coverage from spouse and child to former spouse within the one-year time period.  The former member and   were married on XXXXXXXX.  There is no indication the applicant notified DFAS of the change in his marital status or requested an election on his current wife’s behalf.  The former member passed away on XXXXXXX.  The former member’s widow signed a waiver and release of SBP benefits on 20 Jan 04.

On 25 November 2003, the applicant was informed that her application was being returned, without prejudice, based on a memorandum from HQ USAF/JAG, dated 28 April 2000.  She was advised to reapply to the Board if a court determined she was entitled to the SBP benefits.
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AIR FORCE EVALUATIONS:

HQ AFPC/DPPTR recommends the application be approved.  DPPTR states that premiums were continuously deducted from the former member’s retired pay until his death.  The member’s willingness to accept a reduction in his retired pay for over 19 years after their divorce confirms the applicant’s claim that he intended she receive the SBP.  There is no evidence of Air Force error in this case; however, to preclude a possible injustice, DPPTR recommends the former member’s record be corrected to reflect his spouse coverage was suspended, effective 29 December 1983, and on 1 March 1986, 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.  The HQ AFPC/DPPTR evaluation is at Exhibit C.

Pursuant to the Board’s request, HQ USAF/JAA provided the following advisory opinion.

HQ USAF/JAA recommends the application be denied.  JAA states that because neither the former member nor the applicant provided DFAS with a written request for former spouse SBP coverage within the one-year deadline, there has been no “deemed election” for SBP benefits.  Contrary to Counsel’s argument that a “court of competent jurisdiction already has determined  ’s entitlement to the SBP benefit,” the courts that have addressed this very issue have uniformly held that the one-year election provision mandated by 10 U.S.C., Section 1450(f)(3) is to be strictly construed.  Even if the retiree intentionally violates the court order to provide coverage and is held in contempt, the courts have refused to disregard the strict one-year deadline.

JAA states the former member failed to notify DFAS of his change in marital status and did not make an election to provide former spouse coverage to his first wife.  The record indicates that the applicant did not file a timely election with DFAS seeking former spouse benefits.  Consequently, her right to seek SBP coverage lapsed one year after the divorce decree was signed.  By operation of law,   became the lawful SBP beneficiary on the first anniversary of their marriage and she has a lawful right to the SBP benefits.  While this turn of events may not reflect the intent of either the former member or the applicant with regard to SBP benefits, it can be persuasively argued that there has been no error or injustice in this case.

With regard to the widow’s offer to relinquish her SBP benefits, allowing the applicant to be named beneficiary in her place, despite the widow’s gesture, there is no provision within the SBP legislation for a beneficiary to transfer his or her benefits to another.  By law, without a deemed election-taking place,  ’s SBP benefits vested one year after she married the former member.  While she may certainly decide not to apply for or accept SBP payments, she is not at liberty to direct that those payments be made to an unauthorized individual.

Although not raised, JAA comments on the issue of whether the Air Force was required to notify the former spouse that the member had not filed the appropriate paperwork with DFAS to entitle her to former spouse status.  The SBP legislation contains a number of instances in which the military service must notify a spouse concerning SBP benefits; however, no such notification requirement exists with regard to former spouses.

In JAA’s opinion, there is no error and arguably no injustice to one who failed to comply with the requirements of the law.  The HQ USAF/JAA evaluation is at Exhibit D.
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COUNSEL’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel reviewed the advisory opinions and indicates that the applicant has expressly acknowledged the lack of any legal “error” on the part of the Air Force.  Her application is based solely upon the injustice of what has transpired.  HQ AFPC/DPPTR agreed in its 27 October 2003 advisory opinion.  Counsel references other cases where the military correction boards have agreed.  It is manifestly unjust for the applicant to be denied the support the former member intended, she expected and a court ordered -- simply because the Air Force did the bare minimum that was expected of it.  JAA misconstrues the import of the widow’s statement.  In it, she does not seek to “transfer…her benefits to another”  or purport to “direct that [SBP] payments be made to an unauthorized individual.”  Instead,   simply resolves the “dispute between two claimants” that dissuaded this Board from granting relief in 2003.  Now that that impediment has been removed by   ’s renunciation of SBP benefits in favor of the applicant, JAA offers a new and different reason why the former member’s intent should not be honored.  The former member’s records should be corrected to provide the applicant with the SBP benefits that all know he intended her to receive.  Counsel’s response is 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 error or 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 our opinion that the former spouse should receive the SBP annuity at the reduced level of retired pay to comply with the divorce decree and settlement agreement awarding the asset to her by the court.  We note the widow has provided a notarized statement relinquishing her entitlement to the SBP.  We are persuaded by the evidence presented that it was the applicant’s intent to provide his former spouse the SBP annuity and satisfied that his widow is fully aware she is relinquishing her entitlement to the annuity.  Therefore, we accept the opinion and recommendation from HQ AFPC/DPPTR and recommend 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:

	a.  On 29 December 1983, the spouse portion of his Survivor Benefit Plan coverage was suspended.

	b.  On 1 March 1986, he elected under the Survivor Benefit Plan to change his coverage from “spouse and child” to “former spouse,” naming   as former spouse beneficiary, based on reduced retired pay.
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The following members of the Board considered this application in Executive Session on 20 July 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-03233.

   Exhibit A.  DD Form 149, dated 13 Feb 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPTR, dated 27 Oct 03.
   Exhibit D.  Letter, HQ USAF/JAA, dated 20 Apr 04.
   Exhibit E.  Letters, SAF/MRBR, dated 7 Nov 03, and AFBCMR,
                        dated 26 Apr 04.
   Exhibit F.  Letter from Counsel, dated 25 May 04, w/atchs

                                   

AFBCMR BC-2003-03233

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:

		a.  On 29 December 1983, the spouse portion of his Survivor Benefit Plan coverage was suspended.

		b.  On 1 March 1986, he elected under the Survivor Benefit Plan to change his coverage from “spouse and child” to “former spouse,” naming 	 as former spouse beneficiary, based on reduced retired pay.