RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03917 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: A copy of the divorce decree was provided to Elmendorf AFB shortly after the divorce was final. He has been paying for SBP since his retirement and his former spouse deserves to receive the benefit. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 12 May 14, the Board staff requested the applicant and his former spouse provide documentary evidence of their current marital status. In response, the applicant provided signed notarized affidavits attesting that neither he nor his former spouse has remarried. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibit B. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends granting the request to preclude a possible injustice. A spouse's eligibility to receive an SBP annuity terminates upon divorce. However, there are two mechanisms for changing spouse coverage to former spouse coverage. The former service member may file an election change or the former spouse may request the service member be deemed to make an election on his or her behalf. One of these actions must be exercised within the first year following the divorce. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. If neither party requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. If the service member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the service member's death. The applicant was married and elected spouse only SBP coverage based on full retired pay prior to his 1 Aug 90 retirement. On 29 Jul 96, they divorced, and in the divorce decree, the applicant agreed to maintain his former spouse as the beneficiary under the SBP. There is no evidence the applicant or his former spouse submitted a valid election to change the SBP coverage from spouse to former spouse within one year following their divorce. The SBP premiums continued to be deducted from his retired pay and the records at the finance center reflect his former spouse as the eligible spouse beneficiary. Neither party has remarried, and there is no competing claimant. A complete copy of the AFPC/DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 Jan 14 for review and comment within 30 days (Exhibit C). As of this date, no response has been received by this office. ________________________________________________________________ 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 a thorough review of the applicant’s complete submission and the evidence of record, we believe the applicant has been the victim of an error or injustice. In this respect, we note the comments of the Air Force office of primary responsibility (OPR) indicating that while there is no evidence the applicant or his former spouse submitted a valid former spouse election within one year of their divorce, SBP premiums continued to be deducted from the applicant’s retired pay and official records continue to reflect the former spouse as the eligible spouse beneficiary. Considering these facts and that denial of the applicant’s request would deprive the former spouse of an asset awarded by the court, we believe it is in the interest of justice to grant the requested relief. Therefore, we concur with the findings and recommendation of the Air Force office of primary responsibility and recommend the former service member’s records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER SERVICE MEMBER be corrected to show that on 30 Jul 96, he elected former spouse coverage under the Survivor Benefit Plan (SBP), naming the APPLICANT as the former spouse beneficiary based on full retired pay. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03917 in Executive Session on 29 May 14, 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 12 Jul 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 30 Sep 13. Exhibit C. Letter, SAF/MRBR, dated 6 Jan 14. Exhibit D. Letter, AFBCMR, dated 12 May 14, w/atchs. Exhibit E. Notarized Affidavits, dated 27 May 14 and 10 Jun 14. Panel Chair DEPARTMENT OF THE AIR FORCE WASHINGTON DC Office of the Assistant Secretary AFBCMR BC-2013-03917 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code, it is directed that: The pertinent military records of the Department of the Air Force relating to , be corrected to show that on 30 Jul 96, he elected former spouse coverage under the Survivor Benefit Plan (SBP), naming as the former spouse beneficiary, based on full retired pay. Director Air Force Review Boards Agency 1 2 3 4 5