ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2011-00592-2

XXXXXXXxXXXX (MEMBER)	COUNSEL:  XXXXXXXXXX

XXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

The Board reconsider her request to correct her former spouse’s record to reflect he made a timely election designating her as the former spouse beneficiary under the Survivor Benefit Plan (SBP).

RESUME OF THE CASE

The applicant is the former spouse of a retired Air Force colonel (O-6).  

On 6 December 2011, the Board considered and denied her request for a deemed election as a former spouse beneficiary under the SBP, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief due to the competing interest of the member’s current spouse.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 7 February 2018, the circuit court approved a subsequent and partial settlement agreement designating the applicant as the former spouse and beneficiary under the SBP. 

On 10 April 2019, the applicant requested reconsideration of her request for a deemed election as a former spouse beneficiary for SBP.  She again contends that the Final Judgment of Dissolution of Marriage establishes that she was to be named the SBP beneficiary and that she has been paying SBP premiums from her share of the retired pay.

On 12 August 2019, according to a signed/notarized SBP Marital Status Affidavit (Retiree), the service member swore/affirmed that on 21 April 1984, he and his former spouse married and on 28 February 2001, they divorced.  On 27 August 2003, he married his current spouse.

On 12 August 2019, according to a signed/notarized SBP Release of Benefits (Current Spouse) Affidavit, the service member’s current spouse swore/affirmed that she was fully advised of her right to SBP benefits, and hereby relinquishes any competing interest she may have in favor of her spouse’s former spouse. 
On 12 September 2019, according to a signed/notarized a SBP Marital Status Affidavit (Former Spouse), the applicant swore/affirmed she is not currently married.

The applicant’s complete submission is at Exhibit G.
APPLICABLE AUTHORITY 

An election by the service member to convert spouse coverage to former spouse coverage, “must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.”  T10 U.S.C. §  1448(b)(3)(A)(iii).

If a court has ordered a service member to elect former spouse SBP, then a former spouse can submit his or her own request to DFAS for former spouse SBP coverage.  This is known as a “deemed election request.”  There is a time limit:  “An election may not be deemed to have been made … unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.”  10 U.S.C. § 1450(f)(3)(C).

FINDINGS AND CONCLUSION

1.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an error or injustice.  In particular, the applicant has provided a signed affidavit from the member’s current spouse relinquishing any competing interest in SBP in favor of the member’s former spouse, which is sufficient to justify changing the original findings and recommendation of the Board.  Therefore, the Board recommends the member’s records be corrected as indicated below.

2.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the MEMBER be corrected to show that:

	a. On 28 February 2001, he submitted a timely and effective election for former spouse coverage under the Survivor Benefit Plan, based on full retired pay, naming APPLICANT as the eligible beneficiary.

	b. Approval should be contingent upon recovery of Survivor Benefit Plan premiums.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2011-00592-2 in Executive Session on 19 November 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 6 December 2011.
Exhibit G:	Application, DD Form 149, w/atchs, dated 10 April 2019.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.