RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05614 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be designated as the former spouse beneficiary under the decedent’s Reserve Component Survivor’s Benefit Plan (RCSBP). APPLICANT CONTENDS THAT: The RCSBP costs were deducted from the decedent’s pay until his death; however, the benefits will not be paid due to a missing form which needs to be filed to change the designated beneficiary from spouse to former spouse. She was the listed beneficiary until the time of his death. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 4 Jul 65, the parties were married. According to a divorce decree issued by the Commonwealth of Massachusetts, docket number 87D0621-D1, the parties divorced on 30 Jun 87. The divorce decree is silent on SBP but includes a signed, notarized statement dated 11 Apr 87 from the decedent that he would keep all insurance in force with the applicant as the beneficiary. According to a certificate of death issued by the Commonwealth of Massachusetts, the service member died on 28 Jun 11. His death certificate reflects he was not married at the time of his death. In an e-mail dated 14 Jan 15, DFAS-CL confirmed a refund of SBP cost in the amount of $6830.18 for the period of premiums paid 29 Jun 05 through 29 Jun 11 was issued to the applicant, the designated beneficiary. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on 1 Jul 87, he elected to change RCSBP spouse to former spouse coverage based on full retired pay, naming the applicant as the eligible beneficiary. Approval should be contingent upon recovery of any applicable premiums.As background, 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 taken 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 the member agreed, or the court ordered the member to establish former spouse coverage. If neither the member nor the former 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 the Defense Finance and Accounting Service-Cleveland Center (DFAS)-CL) of the divorce and continues to pay SBP premiums afterwards. The parties divorced on 30 Jun 87 and the divorce decree was silent on the SBP. The service member elected spouse only RCSBP coverage based on full retired pay (immediate option) under the RCSBP on 26 Sep 79 after becoming eligible to receive retired pay except for attaining age 60. He began receiving retired pay effective 21 Feb 98, his 60th birthday. There is no evidence the decedent submitted a valid election to voluntarily change spouse to former spouse coverage during the required time following their divorce as the law requires. The retired pay data system at DFAS-CL continued to reflect the applicant’s name as the eligible spouse beneficiary. SBP premiums were deducted from the decedent’s retired pay until his 28 Jun 11 death. There was no evidence either party remarried, and accordingly there is no competing claimant. Despite the decedent’s failure to submit a valid former spouse election change, he did not request coverage for the applicant be terminated following their divorce. His willingness to accept a reduction in his retired pay, even though he had no eligible spouse beneficiary for over 12 years, is indicative of his intent for the applicant to be eligible for his RCSBP. A complete copy of the DPFFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In an affidavit dated 15 May 14, the applicant under oath states she is not married. The applicant’s complete submission is at Exhibit E. 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 error or injustice warranting relief. We note the Office of Primary Responsibility (OPR) states that absent a competing claimant, they recommend granting the requested relief. As such, we find the death certificate provided by the applicant sufficient to conclude that the decedent was not married at the time of his death. We note the divorce decree is silent on SBP. However, we find the decedent’s hand-written statement dated 11 Apr 87, agreeing to maintain insurance on the applicant coupled with the fact he continued making SBP premium payments for over 12 years without an eligible spouse beneficiary sufficient to conclude it was his intent to have the applicant as his SBP beneficiary. Therefore, we agree with the recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. Accordingly, we recommend the decedent’s record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to DECEDENT be corrected to show that on 1 Jul 87, he elected to change his RCSBP spouse coverage to former spouse coverage based on full retired pay, naming the APPLICANT as the former spouse beneficiary, contingent upon recoupment of any applicable premiums. The following members of the Board considered AFBCMR Docket Number BC-2013-05614 in Executive Session on 29 Dec 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 in AFBCMR Docket Number BC-2013-05614 was considered: Exhibit A. DD Form 149, dated 1 Dec 13, w/atchs. Exhibit B. Memorandum, AFPC/DPFFF, dated 24 Apr 14. Exhibit C. Letter, SAF/MRBR, dated 8 May 14. Exhibit D. Letter, SAF/MRBR, dated 8 May 14. Exhibit E. Affidavit, Applicant, dated 15 May 14.