RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02681 INDEX CODE:	137.04
XXXXXXXXXXXXXXXXXXXX	COUNSEL: NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His Survivor Benefit Plan (SBP) election be changed from spouse to former spouse coverage.

APPLICANT CONTENDS THAT:
Neither he nor his former spouse was notified of the need to change his SBP election when they got divorced. They only recently discovered the requirement when they had contacted the Defense Finance and Accounting Service (DFAS) relating to another matter.

In support of his appeal, the applicant provides copies of a DFAS letter, divorce decree, SBP Election Statement for Former Spouse Coverage, marriage certificate to current spouse, and a notarized waiver for release of information.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
According to the Military Personnel Data System (MilPDS), the applicant was released from active duty with the Regular Air Force on 31 August 2004 and retired effective 1 September 2004 in the grade of senior master sergeant (E-8).  He had a pay date of
19 July 1983 and a Total Active Federal Military Service Date of
6 February 1984.
According to the Air Force office of primary responsibility, the applicant and his former spouse were married on 8 May 1992. Prior to his 1 September 2004 retirement, the applicant elected spouse and child coverage based on full retired pay. The parties divorced on 12 December 2006, and in the Marital Settlement Agreement, incorporated in the divorce decree, the applicant

agreed that his former spouse would remain the SBP beneficiary. The applicant and his current spouse were married on 2 March 2008.

AIR FORCE EVALUATION:
AFPC/DPSIAR forwards the applicant’s request without a recommendation because it involves two potential beneficiaries. DPSIAR states there is no evidence the applicant or former spouse submitted a valid former spouse election within the one-year period following their divorce as the law requires. Additionally, the applicant did not notify the finance center of the change in his marital status when he remarried on 2 March 2008, nor did he request that SBP spouse coverage be established on his new wife’s behalf. Premiums for spouse and child SBP coverage continued to be deducted from the applicant’s retired pay until 4 August 2008, when the DFAS-Cleveland Center retroactively suspended the spouse portion of SBP coverage, established child only coverage, and issued a refund of overpaid premiums.

The DPSIAR evaluation is at Exhibit B.
The MRB Legal Advisor recommends denial of the applicant’s request. The MRB Legal Advisor states that the applicant’s ignorance of the legal requirement does not prevent it from having its congressionally intended effect. If there were not a competing eligible beneficiary, or there was a notarized consent of the current spouse, the MRB Legal Advisor would recommend correcting the record. No extraordinary circumstances exist in this case that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the applicant’s current spouse of benefits to which she is legally entitled. The MRB Legal Advisor reminds the panel that if they are inclined to grant the remedy, it should not reach a final decision until the view of the current spouse is solicited and considered.

The MRB Legal Advisor evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
After receiving the MRB Legal Advisor opinion, the applicant responded on 14 October 2008, with a notarized statement from his current spouse, giving her consent for reinstatement of SBP coverage to her husband’s former spouse in accordance with their

Marital	Settlement	Agreement	for	Simplified	Dissolution	of Marriage which was effective 12 December 2006.

The applicant’s response, with attachment, is at Exhibit E.

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. After thoroughly reviewing the circumstances, we are persuaded it was the applicant’s intent to provide his former spouse and child the SBP annuity in accordance with their divorce decree. We note the BCMR Legal Consultant indicates in his evaluation that if the applicant’s current spouse provided a notarized consent for the former spouse to be the eligible beneficiary, that he would recommend the Board grant the appeal. We also note that on 14 October 2008, the applicant’s current spouse provided her notarized consent. Therefore, the Board recommends the applicant’s records be corrected to the extent indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on
15 December 2006, he elected former spouse and child coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming XXXXXXXXXXXXXXX as beneficiary.

The following members of the Board considered this application in Executive Session on 13 November 2008, under the provisions of AFI 36-2603:

Panel Chair, 
Member
, Member

All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2008- 02681 was considered:

Exhibit A.	DD Form 149, dtd 17 Jul 08, w/atchs.
Exhibit B.	Letter, ARPC/DPSIAR, dtd 19 Aug 08, w/atchs. Exhibit C.	Letter, MRB Legal Advisor, dtd 16 Sep 08, w/atchs. Exhibit D.	Letter, AFBCMR, dtd 17 Sep 08.
Exhibit E.	Applicant’s Response, dtd 14 Oct 08, w/atch.

Panel Chair