RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00611
		INDEX CODE:137.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

After his divorce, he mailed his divorce decree to the Denver office but it was returned unopened.  By the time he received his returned mail, it was more than a year after his divorce.  He remarried on 1 September 1990 and rather than have his SBP go to no one, he elected to have his present wife listed as the beneficiary.  Until recently, he assumed that if he should die, the SBP beneficiary could be easily changed.  His attorney has recommended that he do everything possible to get his records corrected so his family will avoid an expensive legal case.  

In support of his appeal, applicant submits a personal statement cosigned by his current spouse, a copy of his divorce decree, a copy of his retiree account statement and a copy of his SBP Election Statement dated 1 March 2004.  The applicant’s submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Military Personnel Database reflects the applicant retired effective 1 April 1974 in the grade of lieutenant colonel.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. 

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AIR FORCE EVALUATION:

AFPC/DPPTR states that the applicant and former spouse were married on 25 June 1955 and he elected spouse and child coverage based on a reduced level of retired pay prior to his 1 April 1974 retirement.  The parties’ divorce was finalized on 8 May 1989 and the property agreement, incorporated in the divorce decree, contained the applicant’s agreement to designate the former spouse as his beneficiary under the SBP.  However, neither party submitted a valid former spouse election and spouse premiums continued to be deducted from the applicant’s retired pay until December 1989 when the finance center became aware of the divorce, retroactively suspended spouse coverage and refunded overpaid premiums.  AFPC/DPPTR states there is no evidence of an Air Force error; however, to preclude a possible injustice, they recommend the member’s record be corrected to reflect that on 9 May 1989 he elected former spouse coverage based on a reduced level of retired pay.  

AFPC/DPPTR evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 June 2004, a copy of the Air Force evaluation and HQ USAF/JAA legal reviews were sent to the applicant for review and comment.  

On 21 July 2004, this office received a letter from the former spouse’s counsel stating that on 27 July 1989, he sent a copy of the Divorce Decree and Property Settlement Agreement to the Air Force.  As he recalls, the request that the applicant’s beneficiary under the SBP shall be the former spouse was favorably received.  A copy of the counsel’s letter is at Exhibit E. 

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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 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.  We note the current spouse has provided a signed statement of agreement relinquishing her entitlement to the SBP.  We are persuaded it was the applicant’s intent to provide his former spouse the SBP annuity and that his current spouse is fully aware she is relinquishing her entitlement to the annuity.  Therefore, the Board 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 9 May 1989, he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage based on a reduced level of retired pay, naming XXXXXXXXX as the former spouse beneficiary.

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The following members of the Board considered this application in Executive Session on 20 July 2004 and 26 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence for AFBCMR Docket Number 04-00611 was considered:

    Exhibit A.  DD Form 149, dated 17 Feb 04, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 17 Mar 04.
    Exhibit C.  Letter, AFBCMR, dated 18 Jun 04, w/atchs.
    Exhibit D.  Letter, Former spouse’s counsel, dated 16 Jul 04,
                w/atchs.

							
								
AFBCMR BC-2004-00611

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 xxxxxxxxxxxxx, be corrected to show that on 9 May 1989, he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage based on a reduced level of retired pay, naming XXXXXXXX as the former spouse beneficiary.