RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03554 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The deceased former member’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP), naming the applicant as the beneficiary. ________________________________________________________________ APPLICANT CONTENDS THAT: From the date the deceased former member retired until his death, he paid for SBP spousal coverage. The deceased former member and his spouse divorced on 28 Feb 12, and he died on 26 Mar 2012. At the time of his death, a year had not passed since the divorce, so there is no way of knowing if he would have made a deemed election to provide SBP to his former spouse. 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 Air Force office of primary responsibility (OPR), which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval. 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. One of the following actions must be exercised within the first year following the 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 showing the member agreed, or that the court ordered the member to establish former spouse coverage. If neither the member nor the spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. The former spouse is not eligible for annuity payments upon the member’s death even though a member fails to notify the Defense Finance and Accounting Service—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword. The member and the applicant were married on 8 Feb 69. He elected spouse only coverage (immediate option) based on full retired pay under the Reserve Component-SBP (RC-SBP) at the time he completed his Guard Service obligation (8 Jul 92). His retired pay did not commence until his 60th birthday (23 Aug 05). The parties divorced 28 Feb 12, and the decree was silent on the RC-SBP. The member died on 26 Mar 12; his death certificate reflects he was divorced and the Defense Enrollment Eligibility Reporting System (DEERS) does not reflect he remarried before his death. There is no evidence the member submitted an election to change spouse coverage to former spouse coverage following their divorce, nor is there any evidence he requested the applicant be removed as his SBP spouse beneficiary. Based upon the member’s death so soon after their divorce, to deny the applicant’s request would be to deny her a benefit the late member may have intended to provide her. There is no evidence of an Air Force error in his case. The complete AFPC/DPSIAR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Sep 12 for review and comment within 30 days. As of this date, no response has been received by this office (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 injustice. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that relief should be granted. Although we find no evidence of an error on the part of the Air Force, we believe that it is in the interest of justice to provide the requested relief. Therefore, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER MEMBER be corrected to show that on 29 February 2012, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the eligible former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03554 in Executive Session on 7 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Jul 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 10 Sep 12. Exhibit D. Letter, SAF/MRBR, dated 24 Sep 12.