RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03454 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former husband’s records be corrected to show he made a timely election for former spouse and child coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: Her former husband was ordered by the court three times to put her and their four children as beneficiaries of SBP upon his retirement. In support of her request, the applicant provides copies of her Certificate of Final Judgment from the Central Juvenile & Family Court, her divorce decree; a letter from the Defense Finance and Accounting Service (DFAS); her DD Form 2556-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage; and DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component(RC) SBP Request for Deemed Election. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and her former husband were married on 28 May 1988. The parties divorced on 27 March 2002 and in the Divorce Settlement Agreement, the applicant and former husband agreed that the applicant and their minor children would be the beneficiaries of any survivor benefits. There is no evidence DFAS received a request from the former husband deeming that an SBP election made on her behalf during the first year following the date of be divorce. The Defense Enrollment Eligibility Report System (DEERS) records show the former husband remarried on 24 June 2002. On 16 January 2003, the former husband was ordered by a Qualified Domestic Relations Order (QDRO) to ensure the monthly survivor annuity benefit would be payable to the applicant and their children. The former husband retired on 1 July 2008 and he elected child only SBP coverage based on full-retired pay and the spouse concurred in his election. On 19 June 2009, the applicant and former husbandreaffirmed the terms of their original decree and property settlement thatincluded language referring to SBP. Absent a validelection from the former husband, DFAS established the SBP coverage the applicant elected. The applicantremarried on 15 August 2006, prior to her 55thbirthday; therefore, she is not eligible as a former spouse SBP beneficiary as long as the marriage continues. AIR FORCE EVALUATION: AFPC/DPSIAR states there is no evidence of an Air Force error; however, in the interest of justice and absent a competing spouse, we recommend the applicant’srecord be corrected to reflect the former husbandsubmitted a valid request that SBP coverage be deemed on her behalfand child coverage based on full retired pay under the SBP, retroactively established effective 1 July 2008. DPSIAR also states the record should further be corrected to show the former spouse coverage was immediately suspended, due to the former spouse’s remarriage prior to age 55, and child only coverage for their four children was therefore established. In addition, approval should be contingent upon recovery of any applicable retroactive cost. ThecompleteDPSIAR evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copyof the Air Force evaluation wasforwarded to the member on12 November2010, for review and comment within 30 days. As of this date, no response has been received by this office.(ExhibitD). 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 error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case.After thoroughly reviewing the circumstances of this case, it is our opinion that the former spouse should receive theSBP a nnuity based on full retired pay tocomply with the divorce decree and settlement agreement awarding the asset to her by the court. Therefore, we agree with the opinion and recommendation ofthe Air Force office of primary responsibilitythat although the error was not caused by the Air Force, it would be an injustice not to change the records. Therefore, we recommend that the records be corrected as 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: a. On 1 July 2008, he elected "former spouse and child coverage" based on full-retired pay, naming applicant as the eligible beneficiary. b. The former spouse's portion of his Survivor Benefit Plan (SBP) election of former spouse and child coverage based on full retired pay, naming applicant as the eligible former spouse beneficiary, was immediately suspended due to the former spouse’s remarriage prior to age 55. Child only coverage for the children resulting from their marriage (children born on 8 January 1995, 7 May 1997, 6 October 2001 and on 6 October 2001) was established. Approval should be contingent upon recovery of any applicable retroactive costs. _______________________________________________________________ The following members of the Board considered Docket Number BC- 2010-03454 in Executive Session on 1 June 2010, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Sep 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 22 Oct 10 Exhibit C. Letter, SAF/MRBR, dated 12 Nov 10. AFBCMR BC-2010-03454 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 1 July 2008, he elected "former spouse and child coverage" based on full-retired pay, naming applicant as the eligible beneficiary. b. The former spouse's portion of his Survivor Benefit Plan (SBP) election of former spouse and child coverage based on full retired pay, naming XXXXX as the eligible former spouse beneficiary, was immediately suspended due to the former spouse’s remarriage prior to age 55. Child only coverage for the children resulting from their marriage was established. Approval should be contingent upon recovery of any applicable retroactive costs.