RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01857 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased former spouse’s (decedent) records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her divorce with the decedent was amicable. Although the decree did not reflect a SBP stipulation, the decedent intended for her to receive the SBP benefits he paid for following their divorce. In support of her request, the applicant provides a personal statement and copies of her divorce decree and the decedent’s death certificate. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: According to the information provided by the Air Force office of primary responsibility (OPR), the member and the applicant were married and he elected spouse and child coverage based on full retired pay under the SBP prior to his 1 Aug 1989 retirement. They divorced on 21 May 2004, and the court order was silent on the SBP. There is no indication the member submitted an election to change spouse coverage to former spouse coverage before 21 May 2005, as required by law. The retired pay system continued to reflect the applicant's date of birth as the eligible spouse beneficiary. There is no indication either party remarried. SBP premiums continued to be deducted from the member's retired pay until his 6 Dec 2011 death was reported and their divorce became a matter of record. A person's eligibility to receive a spouse SBP annuity terminates upon divorce. However, the law provides two mechanisms for changing spouse coverage to former spouse coverage. Both must be exercised within the first year following divorce: (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf. In the latter case, the former spouse must provide legal documentation the member agreed, or the court ordered the member, to establish former spouse coverage. If neither the member nor the former spouse requests the election change during the one year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member's death. _______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval. DPSIAR states the fact that the member did not request SBP coverage be terminated following his divorce indicates he intended for the applicant to remain his SBP beneficiary. There is no evidence of Air Force error in this case; however, in the interest of justice, DPSIAR recommends the member's record be corrected to show he elected SBP former spouse only coverage based on full retired pay effective 22 May 2004, naming his former spouse as the eligible former spouse beneficiary. Approval should be contingent upon recovery of appropriate retroactive costs. The complete DPSIAR evaluation is at Exhibit B. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 2 Jul 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (Exhibit C). _______________________________________________________________ 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 injustice. There is no evidence of Air Force error; however, to preclude an injustice, we agree with the office of primary responsibility’s recommendation that the deceased member’s records should be corrected to reflect that he made a valid election based on full retired pay effective 22 May 2004, naming his former spouse as the eligible former spouse beneficiary. Accordingly, we recommend the applicant’s records be corrected as set forth below. _______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to DECEASED, be corrected to show that on 22 May 2004, he elected former spouse coverage under the SBP, based on full retired pay, naming his former spouse as the eligible beneficiary. _______________________________________________________________ The following members of the Board considered this application in Executive Session on 19 Dec 2012, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in AFBCMR BC- 2012-01857: Exhibit A. DD Form 149, dated 28 Mar 2012, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 18 Jun 2012. Exhibit C. Letter, SAF/MRBR, dated 2 Jul 2012. Panel Chair