RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00058 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His former spouse be listed as his Survivor Benefit Plan (SBP) beneficiary. _________________________________________________________________ APPLICANT CONTENDS THAT: He learned his former spouse was not listed as the beneficiary on the SBP on 11 Sep 09. His former spouse has contacted her attorney to determine if he had prepared the required paperwork; however, the attorney has not responded to her request. He is asking for his records to be corrected to reflect his former spouse, XXX, as his SBP beneficiary. In support of his request, applicant provides a copy of his divorce decree and a copy of an e-mail from AFPC/DPSIAR. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and the former spouse were married on 26 Sep 75. The member elected spouse only SBP coverage based on full retired pay prior to his 1 Sep 97 retirement. The applicant and former spouse divorced on 7 May 03 and the divorce decree ordered the applicant to elect a Survivor Benefit Option for the former spouse. However, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. The applicant and his current spouse married on 29 Jul 03, but he did not notify the finance center of the change in his marital status or request that spouse coverage be established. Absent a valid election for former spouse coverage, the applicant’s current spouse automatically became the eligible spouse beneficiary by operation of law on the first anniversary of their marriage. _________________________________________________________________ AIR FORCE EVALUATION: DPSIAR has no recommendation since it involves two potential SBP beneficiaries. DPSAIR states the divorce decree ordered the former spouse remain the SBP beneficiary; however, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. The DFAS records erroneously reflect the former spouse’s name and date of birth as the eligible spouse beneficiary and premiums continue to be deducted from the member’s retired pay. The DPSIAR complete evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 26 Feb 10 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ ADDITIONAL AIR FORCE ADVISORY: The AFRBA Legal Advisor recommends denial and states in part that despite the May 03 court order directing the member to convert to former spouse coverage, federal law makes the election unavailable when the deemed election is not timely filed. If there were not a competing eligible beneficiary, the AFRBA Legal Advisor would recommend correcting the record, but there is. The AFRBA Advisor would also recommend correcting the record if the current spouse gives her notarized consent. Absent that consent, no extraordinary circumstances exist that support not enforcing the deemed election requirement given the fact that correcting the record in the manner requested will deprive the member’s current spouse benefits to which she is legally entitled. The complete AFRBA Legal Advisor evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s current spouse sent a notarized letter that gives her consent to name the applicant’s former spouse as his SBP beneficiary. The applicant’s complete submission is at Exhibit F. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and noting that the applicant's current spouse has provided a notarized statement indicating that she concurs with the request and fully understands the ramifications thereof, we believe that in the interest of justice favorable action is warranted. Accordingly, it is our recommendation that the applicant's records be corrected to the extent set forth 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 7 May 2003, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the former-spouse beneficiary. ______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00058 in Executive Session on 11 May 10, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Dec 09, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 11 Feb 10. Exhibit C. Letter, SAF/MRBR, dated 26 Feb 10. Exhibit D. Letter, AFRBA Legal Advisor, dated 22 Mar 10. Exhibit E. Letter, AFBCMR, dated 25 Mar 10. Exhibit F. Letter, Applicant’s Spouse, dated 4 Apr 10. Panel Chair