RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04712 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: Six days after the divorce was final, her attorney submitted a request to the Defense Finance and Accounting Service (DFAS) for her portion of the retirement pay and a SBP election for former spouse coverage, both awarded to her by the court. By letter dated 2 Feb 94, DFAS notified her attorney that a specific form was needed for the division of retirement pay garnishment. The form was completed and submitted. However, there was no indication that further documentation was needed to establish the applicant as the former spouse beneficiary for SBP. In May 2007, the applicant contacted DFAS to inquire if the service member was eligible to retire. She was informed that he had already retired, but she was not authorized to receive a portion of his retired pay, nor was she designated as the former spouse beneficiary of his SBP. While the issues related to her portion of the retired pay appear to be resolved, she has been unable to resolve the SBP issue despite the fact she submitted a deemed election for former spouse coverage well within the requisite year following the divorce. In support of her request, the applicant provides copies of letters from her attorney to DFAS, a letter from DFAS to the applicant’s attorney, and a copy of a congressional inquiry. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate offices of the Air Force, which are attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/DPSIAR recommends granting the requested relief. DPSIAR states that in the interest of justice, it would be appropriate to enforce the agreements awarded the applicant by the court. The complete AFPC/DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and the service member on 11 Feb 11 for review and comment within 30 days (Exhibit C). By letter, dated 24 Feb 11, the service member’s attorney notes his client’s current spouse has declined spouse coverage under the SBP and, as long as he does not incur a cost in the form of monthly premiums, he will agree to remain neutral with respect to the proposed modification of his record. It is further noted that his former spouse is currently receiving monies from his retired pay and that she is a federal employee with her own retirement plan. Counsel’s complete response is at Exhibit D. _________________________________________________________________ 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 error or injustice. The applicant contends she made a timely deemed election for former spouse coverage under the Survivor Benefit Plan (SBP). After a thorough review of the applicant’s complete submission and the evidence of record, to include the various responses from the applicant and the member, we believe the applicant has been the victim of an error or injustice. In this respect, we note the comments by the Air Force office of primary responsibility (OPR) indicating that while there is no evidence she made a valid request for a deemed election, denial of the request would deprive the applicant of an asset awarded to her by the court. We note the requested relief will result in SBP premiums being deducted from the former member’s retired pay. We also note the former member’s stated objection in response to the Air Force evaluation to incurring any cost incident to the requested correction to his records. Nevertheless, we believe the applicant has provided sufficient evidence reflecting her entitlement to former spouse coverage under the SBP. Moreover, the court has ordered the coverage, and there is no competing spouse. Therefore, we concur with the findings and recommendation of the Air Force office of primary responsibility and recommend the former service member’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 the APPLICANT be corrected to show that on 1 August 2004, he elected former spouse coverage under the Survivor Benefit Plan (SBP), naming as the former spouse beneficiary based on full retired pay. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04712 in Executive Session on 7 Sep 11, 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 23 Dec 09, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 28 Jan 11. Exhibit C. Letters, SAF/MRBR, dated 11 Feb 11. Exhibit D. Letter, Former Service Member’s Counsel, Dated 24 Feb 11.