RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03404
		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:

His record reflects spouse coverage, when in fact based on his divorce decree his records should reflect former spouse coverage.

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

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STATEMENT OF FACTS:

The applicant and    were married on 1 August 1953.  The applicant was retired for a disability on 3 July 1971.  The applicant elected spouse only SBP coverage based on a reduced level of retired pay during the plan’s initial open enrollment period (21 September 1972 through 20 March 1974).  He and    were divorced on XX March XXXX and the divorce decree ordered that G. be the SBP beneficiary.  There is no indication in the records that either the applicant or     requested an election to change the SBP coverage from spouse to former spouse.  The applicant married     on XX May XXXX.  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 on 14 October 2003, requested that the applicant provide a completed DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage.  The applicant, as of the date of the advisory opinion, had not responded.

DPPTR recommends if the applicant submits the required documentation, then it would be appropriate to correct his records to reflect he elected to change his SBP coverage from spouse to former spouse based on a reduced level of retired pay.  On 9 December 2003, a completed DD Form 2656-1 was received.

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 19 December 2003, for review and response.  As of this date, no response has been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA has reviewed the case and recommended denial on the basis that neither the applicant nor the former spouse elected coverage during the required one-year period.  They indicate the applicant’s current spouse is the proper SBP beneficiary.  JAA indicated that based on the SBP legislation and applicable case law, the request should be denied.

A complete copy of the evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and disagrees with the decision regarding his former spouse as the SBP 
beneficiary.  He further states neither he nor his former spouse were aware that notification had to be made to DFAS.  The applicant submitted another copy of his divorce decree ordering 		 as the SBP beneficiary (Exhibit E).

On 30 April 2004, the Board staff forwarded the applicant a copy of a memorandum from HQ USAF/JAA, which will be considered in the processing of his application (Exhibit F).

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

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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 1 March 1986, 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-2003-03404 in Executive Session on 14 April 2004 and 18 June 2004, under the provisions of AFI 36‑2603:

By majority vote, the Board recommended granting the application. Ms.    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 16 Sep 03, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 8 Dec 03.
	Exhibit C.	Letter, SAF/MRBR, dated 19 Dec 03.
	Exhibit D.	Letter, HQ USAF/JAA dated 29 Jan 04.
	Exhibit E.	Applicant’s Response, dated 25 Feb 04, w/atch.
	Exhibit F.	Letter, AFBCMR, dated 30 Apr 04, w/atch.
	Exhibit G.	Spouse statement, dated 23 Apr 04.

					

AFBCMR BC-2003-03404

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              , be corrected to show that on 1 March 1986, 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.