RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04712 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Because they were unaware of the requirement, neither he nor his former spouse notified the Defense Finance and Accounting Service (DFAS) within one year of their divorce. They divorced on 1 Jul 05 (sic). By court order, she is to be identified as the former spouse for the benefit of receiving former spouse coverage under SBP. He has paid SBP premiums since his retirement. 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/DPFFF 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. 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 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. Even though a member fails to notify DFAS-Cleveland (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. The applicant and his former spouse were married on 12 Dec 87, and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Nov 02 retirement. The parties’ divorce was finalized on 3 Jun 08, and the separation agreement, incorporated in the divorce decree, contained language that the former spouse will agree to notify by letter the “military pension entity” of her deemed election as the former spouse beneficiary of the SBP. There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the first year following their divorce as the law requires. SBP premiums continue to be deducted from the member’s retired pay and DFAS-CL records continue to erroneously reflect the former spouse’s name and date of birth as the eligible spouse beneficiary. Neither party remarried, and accordingly, there is no competing claimant. Despite the applicant’s failure to submit a valid former spouse election change, he did not request SBP coverage be terminated for his former spouse. He accepted the reduction in retired pay for over four years, indicative of his intent to maintain her as the eligible SBP beneficiary. To deny the applicant’s request would be to deny his former spouse an asset the parties agreed she would retain. Approval should be contingent upon recoupment of any applicable premiums. The complete AFPC/DPFFF 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 14 Dec 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 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. 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 APPLICANT be corrected to show that on 4 June 2008, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the eligible beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04712 in Executive Session on 17 Jun 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 13 Sep 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFFF, dated 6 Dec 12. Exhibit D. Letter, SAF/MRBR, dated 14 Dec 12.