RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00425

	XXXXXXX		COUNSEL:  XXXXXXXX
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His former spouse be entitled to benefits under the Survivor 
Benefit Plan (SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

His court order, dated 10 Apr 01, provides that his former 
spouse was to receive the SBP annuities.

Due to the length of time between the divorce (1999) and his 
application for retired pay (2006), he inadvertently did not 
check the proper option which would have executed survivor 
benefits for his former spouse.  On 15 May 12, he became aware 
of this error when he received an email from his former spouse.

In support of his appeal, the applicant provides copies of his 
divorce decree, DD Form 2656, Data for Payment of Retired 
Personnel, dated 23 Oct 06; email to applicant’s counsel from 
his former spouse, dated 15 May 12; letter from counsel to the 
Defense Finance and Accounting Services (DFAS), dated 25 Jul 12, 
and various other supporting documents.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 24 Jan 75, the applicant and his former spouse were married. 

 On 5 Oct 95, the applicant retired from the Air Force Reserve.  

On 5 May 96, the applicant was automatically enrolled in the 
Reserve Component Survivor Benefit Plan (RCSBP) under Option C 
“deferred until age 60.”  

On 8 Feb 99, the applicant and his former spouse divorced.

On 25 Jan 07, the applicant’s name was placed on the USAF 
Retired List with authorization to receive retired pay.  On this 
same date, the applicant declined SBP coverage.  

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THE AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval, stating, in part, there is no 
evidence of Air Force error; however, to preclude an injustice, 
it would be appropriate to correct the applicant's record to 
show he elected former spouse coverage based on full retired pay 
effective 25 Jan 07, naming the former spouse as the eligible 
beneficiary.  Approval should be contingent upon recoupment of 
any applicable premiums.

The divorce decree awarded the former spouse the "maximum 
possible Survivor Benefit Plan Annuity" under the applicant's 
military retirement and he agreed to take all necessary steps to 
elect his former spouse as the designated beneficiary.  There is 
no evidence the former spouse submitted a deemed election to 
DFAS-CL within the required time.  Neither party has remarried.  
To deny the request would be to deny the former spouse an asset 
awarded to her by the court.

The complete DPFFF evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 3 Jun 13 for review and comment within 30 days.  As 
of this date, no response has been received by this office 
(Exhibit C).

________________________________________________________________

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 warranting corrective 
action.  Although we find no evidence of an error on the part of 
the Air Force, after careful consideration of the applicant’s 
submission, we believe that his former spouse should be 
designated as the eligible beneficiary for his SBP annuity.  We 
note that DPFFF recommended his records be corrected to show 
that he elected former spouse coverage based on full retired pay 
effective 25 Jan 07; however, since SBP elections must be made 
prior to retirement, DPFFF has advised us that the SBP election 
date should now reflect 24 Jan 07.  Therefore, we agree with the 
recommendations of the Air Force office of primary 
responsibility and adopt the rationale expressed as the basis 
for our decision that the applicant has been the victim of 
either an error or an injustice.  Accordingly, we recommend the 
applicant's records be corrected as indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that on 
24 Jan 07, 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-2013-00425 in Executive Session on 7 Nov 13, under the 
provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The 
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 22 Jan 13, w/atchs.
     Exhibit B.  Letter, AFPC/DPFFF, dated 16 May 13.
     Exhibit C.  Letter, SAF/MRBR, dated 3 Jun 13.
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