RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04455 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Survivor’s Benefit Plan (SBP) election be corrected to reflect former spouse coverage instead of spouse coverage. APPLICANT CONTENDS THAT: He signed a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, and it was delivered to his former spouse’s attorney on 8 February 2012. However, due to the failure and negligence of his former spouse’s attorney, the signed document was not submitted before the first anniversary of their divorce which was final on 2 July 2012. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant retired on 19 March 2011 (60th birthday) in the grade of lieutenant colonel (O-5). The parties divorced on 2 July 2012. The Military Pension Division Order issued by the State of Georgia ordered that his former spouse be awarded maximum beneficiary coverage under the SBP. The applicant and his former spouse provide signed, notarized affidavits dated 9 and 11 September 2014, respectively, stating neither party is currently married. AIR FORCE EVALUATION: AFPC/DPFFF states there is no evidence of Air Force error; however, to preclude an injustice DPFFF recommends the applicant’s record be corrected to reflect that on 3 July 2012, he submitted a valid election for former spouse coverage based on full retired pay, naming his former spouse as the eligible beneficiary. Approval should be contingent upon recoupment 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. Both must be exercised 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. 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. 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 former spouse is not eligible for annuity payments upon the member’s death. The applicant and his former spouse were married on 8 February 1975. On 10 October 1995, he elected spouse only SBP coverage based on full retired pay (immediate option) under the Reserve Component SBP (RCSBP). He began receiving retired pay effective 19 March 2011, his 60th birthday. The parties’ divorce was finalized on 2 July 2012, and in the Military Pension Division Order, his former spouse was awarded “maximum beneficiary coverage under the SBP.” There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. SBP premiums continue to be deducted from the applicant’s retired pay and DFAS-CL records continue to erroneously reflect the name and date of birth (xx xxx xx) of his former spouse as the eligible spouse beneficiary. There is no competing claimant as neither party has remarried. Despite the applicant’s failure to submit a valid former spouse election change, he did not request coverage for his former spouse to be terminated following their divorce, indicative of his intent to maintain her as the eligible SBP beneficiary. 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 17 February 2015 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. Having carefully reviewed this application, we agree with the recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Accordingly, 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 APPLICANT be corrected to show that on 3 July 2012, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the eligible beneficiary, contingent upon recoupment of any applicable premiums. The following members of the Board considered AFBCMR Docket Number BC-2014-04455 in Executive Session on 15 June 2015 under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 October 2014, w/atchs. Exhibit B. Memorandum, AFPC/DPFFF, 23 January 2015. Exhibit C. Letter, SAF/MRBR, dated 17 February 2015.