RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00338 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated as the former spouse beneficiary under the Survivor’s Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She and the decedent divorced after 67 years of marriage. On 1l Jan 13, she learned the SBP designation was never changed to “former spouse.” There was never any mention during the divorce proceedings that a separate form to change SBP beneficiary to former spouse was required. Her former spouse had dementia and was not aware a change to the SBP beneficiary was required. He paid SBP premiums for over 30 years and would not have wanted her to be deprived of what they worked so hard for. She is 94 years old and in failing health and is counting on her SBP to pay for her care and final expenses. In support of her request, the applicant provides copies of a Congressional inquiry, death certificate, divorce decree and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 28 Feb 42, the parties were married. On 1 Mar 72, the decedent retired from the Air Force and elected spouse only SBP coverage based on full retired pay during the Plan’s initial open enrollment period (21 Sep 72 – 20 Mar 74) authorized by Public Law (PL) 92-425. The parties divorced on 9 Jul 09, and the decedent died on 11 Jan 13. According to the unexecuted divorce decree submitted by the applicant, the decedent was ordered to designate the full SBP annuity to his former spouse. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. 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. Despite the decedent’s failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce, indicative of his intent for her to remain eligible for his SBP. To deny the applicant’s request would be to deny an asset awarded to her by the court. Absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on 10 Jul 09, he submitted a valid election for 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. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her former spouse passed away on 11 Jan 13. He was diagnosed with dementia in Jun 06. Due to the divorce, she is now known as “former spouse.” Counsel for both sides assured her that everything was in place and all forms necessary for continuation of SBP were filed with appropriate agencies. It was upon contacting the Defense Finance and Accounting Service (DFAS) after his death that she learned that the required document was not submitted. It has now been almost 6 months since her initial contact with the Air Force regarding her application. Her savings have been depleted, her social security has been reduced and she is behind on her bills. She cannot afford to survive much longer without a resolution in her favor, awarding her what is rightfully hers. She hopes this matter will be resolved shortly. 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. After carefully reviewing this application, we agree with the recommendation of the Air Force office of primary responsibility (OPR) and agree with some of the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. We note two issues, however. First, the OPR’s advisory left open the question of the decedent’s marital status at death. Nonetheless, we find the death certificate and public obituary sufficient to conclude that the decedent died without a spouse. Therefore, the possibility of a competing interest is eliminated. Second, we note that the divorce decree submitted by the applicant was not final, as it was not executed by both parties and the court. Even without the decree, we find the evidence considered by this panel sufficient to conclude that the decedent intended that his former spouse receive SBP. The OPR advisory stated: “Spouse SBP premiums were deducted from the member's retired pay until 1 Oct 08, when the paid-up SBP provision became effective. DFAS-CL records continued to erroneously reflect the applicant's name as the eligible spouse beneficiary.” Though evidence of possible dementia makes it difficult for this panel to conclude the decedent’s intentions without doubt, we find that 30 years of SBP payments in the applicant’s name as beneficiary make it more likely than not the decedent intended applicant to receive the benefit. Accordingly, we recommend the applicant’s record be corrected as indicated below. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to DECEDENT be corrected to show that on 10 Jul 09, he elected to change his SBP spouse coverage to former spouse coverage based on full retired pay naming the APPLICANT as the former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2014-00338 in Executive Session on 15 Oct 14, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00338 was considered: Exhibit A. DD Form 149, dated 24 Jan 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 21 Mar 14. Exhibit C. Letter, Applicant, dated 21 Apr 14, w/atch. Exhibit D. Letter, SAF/MRBR, dated 25 Apr 14. Exhibit E. Letter, Applicant, dated 26 Jun 14.