RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01094 (MEMBER) COUNSEL: NONE (APPLICANT) COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former husband’s military record related to Survivor Benefit Plan (SBP) beneficiary election be corrected to reflect “former spouse” SBP coverage. APPLICANT CONTENDS THAT: She was not given the proper forms to secure SBP benefits awarded to her by the court following their divorce in November 2000. In support of her request, the applicant submits a copy of her divorce decree. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: According to documents extracted from the military personnel database system (MilPDS), the member is a former member of the Regular Air Force who served from 19 April 1973, until his retirement on 30 April 1993. He retired in the grade of Technical Sergeant (TSgt), E-6. On 4 March 2013, SAF/MRBR notified the military member of the request from his former spouse, the applicant, for correction to his military records, involving an election for the Survivor Benefit Plan. He was further advised that the law (10 USC 1552 Chap 79), governing the Air Force Board of Correction of Military Records (AFBCMR) changed on 3 January 2006, to allow a former dependent an opportunity to submit an application for correction of military records to correct an error or an injustice. In response to the SAF/MRBR notification, the member submitted a personal statement and copies of the divorce proceedings documents including a decree of dissolution, motions to withdraw, and the court reporter’s transcript. The member states that he was the victim of domestic violence at the hands of the applicant. Court records will show that although he was stabbed by the applicant, he still posted her bail, presented her case to the judge and requested that she not go to prison in order for her to keep her security clearance and her job. She has been receiving her share of his retirement for more that 13 years and now wants more. She has refused to pay him for the increased portion of the SBP as stated in their final divorce decree and court transcript. The member further states, that the applicant’s attorney is intentionally allowing her to lie on paper in order to defraud him and the US government. The applicant is incapable of telling the truth whether under oath or not. The applicant and he have not spoken more than 25 words to each other since 2001. Their children can attest to this fact. The children had to endure embarrassing situations during special events because the applicant refused to socialize with him and his family members. Their daughter’s graduation from Tennessee State University, their sons’ ordination and wedding all revealed that she is still bitter about something and out to get revenge financially. He will appear before the board in person if requested to show why this request or correction should not be granted. The member’s complete response with attachments is at Exhibit C. Copies of the AFBCMR marital status affidavits were forwarded to the applicant and former military member on 1 May 2014, to verify if either has remarried since their divorce (Exhibit F). The applicant responded with a signed and notarized affidavit, dated 21 May 2014, which indicates that she has not remarried. The applicant provided another signed notarized affidavit, dated 12 September 2014, which indicates that, to the best of her knowledge and understanding, her former spouse is not married (Exhibit G). To date, a response from the former military member has not been received. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit D. AIR FORCE EVALUATION: 1. AFPC/DPFFF recommends approval. DPFFF states there is no evidence of Air Force error in this case and absent evidence of a competing claimant, it would be appropriate to enforce the parties' court-ordered agreement to continue SBP coverage on the applicant's behalf. 2. The member and the applicant were married on 27 December 1975. He elected spouse and child SBP coverage based on full retired pay prior to his 1 May 1993, retirement. The parties’ divorce was finalized on 13 August 2001, and the divorce decree ordered the member to maintain full SBP coverage for the applicant. There is no evidence either party submitted a valid election to change SBP coverage from spouse to former spouse coverage during the first year following their divorce. Premiums for spouse and child coverage continued to be deducted from the member's retired pay until DFAS-CL received a copy of the member's divorce decree and retroactively suspended spouse coverage. The youngest child lost eligibility on 1 July 2004, due to age. There is no evidence either party has remarried. 3. They recommend the member’s record be corrected to show the applicant submitted a valid request that SBP coverage be deemed on her behalf, and former spouse coverage, based on full retired pay, was established effective 14 August 2001. Approval should be contingent upon recovery of appropriate retroactive costs. The complete AFPC/DPFFF evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and the member on 17 June 2013, for review and comments within 30 days (Exhibit E). To date, responses have not been received. 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 error or injustice. After thoroughly reviewing the evidence of record and the circumstances of this case, to include the member’s comments and supporting documents, we are persuaded that relief is warranted. The Board notes the Air Force office of primary responsibility (OPR) recommends approval based on the court order, which, directs SBP coverage be awarded to the applicant. We considered the member’s principal argument, rendered in response to SAF/MRBR’s initial notification, that the Board not grant the applicant’s request because the applicant has refused to pay the cost of living adjustment increases relevant to the SBP premium as ordered in their divorce decree. However, information/support documents indicating the applicant’s refusal to pay the increased costs and the member’s attempts to enforce this portion of the court order are conspicuously absent. In addition to the lack of evidence, the member is completely silent with regard to a response to the OPR’s recommendation of approval of the applicant’s request, as well as to the AFBCMR’s requested marital status and release of benefits affidavits. The member’s uncorroborated assertions, in and by themselves, is not sufficiently persuasive to not grant the applicant’s request. The OPR indicates that following their divorce neither the member nor the applicant submitted a valid election to change SBP coverage from spouse to former spouse coverage during the first year following their divorce; however, monthly premiums for spouse and child coverage continued to be deducted from the member's retired pay. To deny the applicant's request would deny her an asset intentionally awarded to her by the court. In view of the above, and since, according to the notarized affidavits provided by the applicant, neither party has remarried, we are in agreement with the favorable recommendation of the OPR contingent upon recovery of appropriate retroactive costs. Accordingly, we recommend the member’s record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to MEMBER, be corrected to show that on 14 August 2001, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay naming the APPLICANT as the former spouse beneficiary. The following members of the Board considered this application in Executive Session on 25 March 2014 and 2 October 2014, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-01094 was considered: Exhibit A. DD Form 149 dated 28 February 2013, w/atchs. Exhibit B. Member’s Master Personnel Record. Exhibit C. Letter, Member, dated 27 May 2013, w/atchs. Exhibit D. Letter, AFPC/DPFFF, dated 3 June 2013. Exhibit E. Letter, SAF/MRBR, dated 17 June 2013. Exhibit F. Letter, SAF/MRBC, dated 1 May 2014, w/atchs. Exhibit G. Letter, Applicant, not dated. Exhibit H. Letter, SAF/MRBC, dated 2 September 2014, w/atch. Exhibit I. Letter, Applicant, dated 12 September 2014, w/atchs.