ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2014-03441
		
							COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

The decedent’s record be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).  

APPLICANT CONTENDS THAT:

She provides affidavits from the decedent’s children and parents relinquishing the Arrears of Pay (AOP).

They were unaware of the requirement to file a former spouse SBP election.  Immediately after their divorce, her former spouse notified the Defense Finance and Accounting Service (DFAS) of their divorce and inquired as to what was required to ensure she received military retirement pay and continued to be his SBP beneficiary.  Her former spouse followed the instructions provided by DFAS not knowing the instructions only pertained to retired pay and not SBP.  

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

RESUME OF CASE:

On 1 June 2001, the decedent retired in the grade of Senior Master Sergeant (SMSgt, E-8).

The parties were married on 3 May 1976 and the decedent elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 June 2001 retirement.  

The parties divorced on 12 May 2005 and the divorce decree was silent on SBP.  There is no evidence the decedent elected or the applicant made a deemed election for former spouse SBP coverage within one year of their divorce as required by law.  However, the decedent continued to pay the costs of the SBP premium naming the applicant as the erroneous spouse beneficiary until his death on 12 May 2014.  There is no evidence either party remarried and accordingly there is no competing interest for the SBP annuity.

On 1 February 2016, the AFBCMR denied the applicant’s request she be designated as the former spouse SBP beneficiary and receive the SBP annuity.   The Board noted the divorce decree was silent on SBP and that neither an election by the former service member nor a deemed election by the applicant was received within one year of their divorce as required by law.  Moreover, while there is no evidence of a competing interest for the SBP annuity, the Agency Legal Counsel advised there exists a potential for competing interests for the AOP (costs of SBP) and that the Board should not consider such cases unless a court of competing jurisdiction has ruled in the case or remands the case to the Board to make a determination.  In view of the recommendation, the Board noted they were precluded from granting the applicant’s request but indicated they would be willing to reconsider the request should a notarized consent relinquishing the benefit from the decedent’s heirs be provided.   

The applicant provides notarized AFBCMR SBP Release of Benefits (Arrears of Pay) affidavits from the former service member’s parents and children relinquishing the AOP in her favor.    

On 17 February 2017, DFAS confirmed that the AOP had not been paid to any heirs as no claim for the AOP had been made as of this date.

In accordance with 10 U.S.C. § 1408 (a)(4), the former spouse SBP beneficiary is to be liable for 50 percent of the cost of SBP.  

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.  The applicant requests the decedent’s record be corrected to reflect he made a timely election she be designated as the former spouse SBP beneficiary.  We note the MRB Legal Counsel in the initial application stated that the Board should not grant the applicant’s request based on potential competing interests for the AOP.  In this respect, the applicant has provided affidavits from the decedent’s heirs relinquishing the AOP in favor of the applicant and note DFAS has not made a refund of the AOP as no claim by the decedent’s heirs had been submitted.  We are also persuaded that while the divorce decree is silent on SBP, it was the intent of the decedent that his former spouse be designated as his SBP beneficiary as evidenced by his continued payment of SBP premiums for 9 years following the parties divorce with his former spouse named as the erroneous spouse beneficiary.  In view of the above, we find the evidence presented sufficient to correct the record to show that on 11 May 2006 (one year from the parties divorce on 12 May 2005), he elected former spouse coverage under the SBP naming the applicant as the designated former spouse SBP beneficiary.   Therefore, 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 the DECEDENT be corrected to show that on 11 May 2006, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on reduced level of retired pay, naming the APPLICANT as the eligible beneficiary, contingent upon recoupment of any applicable premiums.  

The following members of the Board considered AFBCMR Docket Number BC-2014-03441 in Executive Session on 7 March 2017 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 H.  DD Form 149, dated 24 September 2016, w/atchs.
	Exhibit I.  Record of Proceedings, dated 3 February 2016,
			  w/Exhibits.  	 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.