RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03655 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he made a timely election for former spouse and child coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: He notified Defense Finance and Accounting Service (DAFAS) of the finalization of his divorce, which was effective 4 April 2011. He was instructed by DFAS to fax them the divorce decree; however, he was not instructed to change his SBP election from spouse and child to former spouse and child coverage as required by the divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: On 31 August 2010, the applicant was relieved from active duty and retired, effective 1 September 2010, and was credited with 24 years, 5 months, and 2 days of total active service. The remaining 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 contingent upon recoupment of any applicable premiums. A person’s eligibility to receive a spouse SBP annuity terminates upon divorce. The only means by which the divorced spouse can become a SBP beneficiary is if former spouse coverage is elected by the service member or a deemed election is made on the basis of a court order. However, the court order must be submitted along with an election within one year of the date of the original court order which awarded the 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. In this case, the applicant and former spouse were married on 17 July 1985. He elected spouse and child SBP coverage based on full retired pay prior to his 1 September 2010 retirement. The parties divorced on 4 April 2011 and as a part of the Marital Settlement Agreement, the applicant was directed to pay a “survivor’s annuity” to his former spouse. However, there was no evidence that either the applicant or the former spouse made an election to change spouse to former spouse coverage within the first year following their divorce. Although SBP premiums continue to be deducted from the applicant’s retired pay and his former spouse was erroneously reflected as his eligible spouse beneficiary, the former spouse is not eligible for annuity payments upon the applicant’s death since an election was not made. However, it appears to be the applicant’s intent for his former spouse to be the eligible SBP beneficiary. He accepted a reduction in retired pay for over a year, indicative of his intent to maintain his former spouse as the eligible SBP beneficiary. Neither party has remarried; accordingly, there is no competing claimant. A complete copy of the 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 September 2012 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 error or injustice to warrant corrective action. 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 (OPR) that it would be appropriate to recommend granting the requested relief. While there is no evidence of an error on the part of the Air Force, in view of the fact the applicant did not request termination of SBP coverage and premiums continued to be deducted from the former member’s retired pay, we find this illustrates his intent to continue SBP for his former spouse. Therefore, in the interest of justice, we recommend that the records be corrected as 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 5 April 2011, he elected former spouse and child coverage under the Survivor Benefit Plan (SBP), based on full retired pay, naming his former spouse as the beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03655 in Executive Session on 7 May 2013, 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 23 July 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 12 September 2012. Exhibit D. Letter, SAF/MRBR, dated 24 September 2012.