RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01800 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect former spouse Survivor Benefit Program (SBP) election. _________________________________________________________________ APPLICANT CONTENDS THAT: In Oct 90, his divorce decree was forwarded to the Defense Finance and Accounting Service (DFAS); however, the former spouse election form was not included. He has tried repeatedly via electronic mail, fax and phone to correct this error. He would like to have the coverage established for his former spouse. In support of his request, the applicant submits copies of letters from DFAS and his divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. On a separate DD Form 149, the applicant’s former spouse requests SBP coverage be reestablished on her behalf. The premiums were paid before and after the divorce. Neither party was informed or notified about the one year time frame for submitting an election. The parties assumed all paperwork for SBP benefits were filed correctly after the divorce by the attorney. The former spouse’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 12 Oct 63, the applicant was married. On 1 Feb 71, he retired from service and elected spouse and child coverage based on full retired pay during the open enrollment authorized by Public Law (PL) 97-35 (1 Oct 81 to 31 Sep 82). Effective Jun 86, the children were no longer eligible as contingent beneficiaries. On 12 Oct 90, the parties divorced and the applicant was ordered to elect SBP on behalf of his former spouse. Neither party submitted an election for former spouse coverage within the first year of the divorce; however, the member did not request his former spouse be removed as the SBP beneficiary. In addition, the monthly premiums continued to be deducted from his retired pay. On 16 Mar 12, the applicant was notified by DFAS that his SBP spouse coverage was adjusted from former spouse coverage to no beneficiary coverage effective 12 Oct 90, based on his recent submission of his divorce decree. Due to this action, he was refunded in the amount of $17,696.81. On 26 Mar 12, he was notified that his request to establish former spouse coverage and repay the premiums was not adequate to elect SBP coverage for his former spouse. While DPSIAR states there is no evidence either party has remarried, if it is later determined there was a competing spouse, the Board has the authority to void its decision based on new evidence indicating the applicant (member) has remarried. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval of the applicant’s request. DPSIAR notes there is no evidence of Air Force error in this case. Additionally, a review of the former service member’s record via the Defense Enrollment Eligibility Reporting System (DEERS) confirmed there is no competing claimant. DPSIAR states to deny the applicant’s request would be to deny his former spouse an asset awarded to her by the court. The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant fully concurs with the DPSIAR recommendation. He would like the funds electronically debited from his account by DFAS as they were credited. He states retaining the funds will place him in an unsustainable and libelous situation. He will be in trouble with the Internal Revenue Service (IRS), his state tax office, etc., if he does not pay back the premiums. The applicant’s complete submission, with attachments, 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. In this respect, we note the Air Force office of primary responsibility (OPR) recommends the service member’s record be changed to reflect that he elected former spouse coverage under SBP and we agree with their recommendation. Therefore, in the interest of justice we recommend his records be corrected to show that he made a timely election for spouse coverage based on full retired pay under the SBP. Regarding his request to have SBP premiums electronically debited from his account, the AFBCMR is empowered only to correct records, determining how the SBP funds are paid is the responsibility of the Defense Finance and Accounting Service (DFAS). As such, this request is outside the Board’s purview. In view of the above, we recommend 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 on 13 Oct 90, he elected former spouse coverage based on full retired pay under the Survivor Benefit Plan, naming his former spouse as the eligible beneficiary. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 18 Jan 13, under the provisions of AFI 36- 2603: Panel Chair Member Member All members voted to correct the record as recommended. The following documentary evidence pertaining to AFBCMR BC-2012-01800 was considered: Exhibit A. DD Form 149, dated 9 Apr 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 11 Jun 12. Exhibit C. Letter, SAF/MRBR, dated 25 Jun 12. Exhibit D. Letter, Applicant, dated 4 Jul 12. Panel Chair