RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05021 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he elected his former spouse as the beneficiary of his Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: He believed the beneficiary of his SBP had been changed to “former spouse” after seeing that his retirement pay statement reflected “former spouse.” In 2000, immediately following receipt of their final divorce decree, he provided a copy of the divorce decree and the required paperwork to change the status of the beneficiary on his SBP to “former spouse.” He has made SBP payments since 1995. The applicant’s complete submission, with attachment, 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. One of the following actions 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. The former spouse is not eligible for annuity payments upon the member’s death even though a member fails to notify DFAS-CL of the divorce and continues to pay SBP premiums afterwards. The applicant and his former spouse were married on 20 Jun 81. He elected spouse only SBP coverage based on full retired pay prior to his 1 Dec 95 retirement. The parties’ divorce was finalized on 10 Mar 00 and their divorce decree ordered the applicant to take all necessary action to change the SBP coverage immediately following the finalization of the divorce. There is no evidence either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. SBP premiums for spouse coverage continued to be deducted from the member’s retired pay, and the former spouse’s name and date of birth remained as the applicant’s eligible spouse beneficiary until DFAS-CL received his 19 Mar 12 request to change spouse coverage to former spouse SBP coverage. Since the request was not timely, it was not honored, and spouse coverage was suspended. There is no evidence either party has remarried; therefore, there is no competing claimant. To deny the applicant’s request would be to deny his former spouse an asset awarded to her by the court. Correction should be contingent upon recovery of appropriate retroactive costs. 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 10 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 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 APPLICANT be corrected to show that on 11 March 2000, 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-2012-05021 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 9 Oct 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFFF, dated 16 Nov 12. Exhibit D. Letter, SAF/MRBR, dated 10 Dec 12. Panel Chair