RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04713 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s military records be corrected to reflect former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She is not enrolled in the SBP program because at the time of her former spouse’s military retirement, he deliberately lied when filling-out the DD Form 2656, Data for Payment of Retired Personnel, by stating that he was single and unmarried. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The military member initially entered the Regular Air Force on 29 Mar 91. On 26 Jun 12, the military member received his SBP briefing and signed the document certifying such and that he understood that if he failed to make a valid SBP selection prior to retirement, and if he was married and his spouse failed to concur in an election of less than full spouse coverage, DFAS would automatically establish full coverage by operation of law. On 27 Sep 12, the military member signed the DD Form 2656, Data for Payment of Retired Personnel, indicating he was “single” not married. On 31 Oct 12, the military member was furnished an honorable discharge, retired effective 1 Nov 12, and was credited with 21 years, 7 months, and 2 days of active service. On 19 Nov 14, AFBCMR sent requests to the applicant and former member for a notarized affidavit confirming their marital status (Exhibits C and D). On 2 Dec 14, notarized affidavits from the applicant and former member were received by the AFBCMR confirming the applicant and former member were not currently married (Exhibits E and F). The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit G. AIR FORCE EVALUATION: AFPC/DPFFF recommends granting relief, indicating sufficient evidence has been presented to demonstrate the existence of error or injustice. Public Law (PL) 99-145, 8 Nov 85, established the requirement that a spouse's written concurrence be obtained if a married member elects less than full spouse SBP coverage. Concurrence in SBP elections applies to all married members retiring on or after 1 Mar 86. The applicant and the former military member were married on 26 Jun 87. The military member retired on 1 Nov 12. Prior to retiring he was counseled on the SBP by the SBP counselor, and he elected to decline SBP coverage. The applicant did not attend the SBP briefing, and did not concur in his election. Since the military member's election was invalid, by operation of law, full spouse and child coverage should have been established effective the date of his retirement. However, DFAS-CL honored his election to decline SBP coverage. On 1 Oct 13, DFAS-CL received a letter from the applicant notifying them of her marriage to the member and requesting that SBP be "deemed" on her behalf, but spouse coverage was not established. In accordance with law, a person’s eligibility to receive spouse SBP terminates upon divorce; however, the military member or former spouse can take action within the first year of the divorce to establish former spouse SBP coverage. On 26 Nov 13, the former military member and the applicant were divorced. There is no evidence DFAS-CL received any requests from the former military member or applicant to make an election change within the first year following the divorce, in accordance with law. Therefore, the applicant (former spouse) is not eligible for annuity payments upon the member’s death. On 18 Dec 14, AFPC/DPFFF notified DFAS-CL the former military member’s record was in error (did not reflect full spouse and child coverage). DFAS-CL corrected the former military member’s record to reflect the aforementioned coverage effective the date of his retirement. On 19 Dec 14, they suspended the spouse coverage effective 26 Nov 13, the date of the divorce. There is no evidence that either party has remarried. There is no evidence of Air Force error in this case. However, in the interest of justice, and absent a competing claimant, AFPC/DPFFF recommends the former military member’s record be corrected to show that the applicant submitted a valid request for former spouse coverage based on full retired pay to be deemed on her behalf effective 27 Nov 13, contingent upon recovery of appropriate retroactive costs. A complete copy of the AFPC/DPFFF evaluation is at Exhibit G. APPLICANT’S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 25 Feb 15, for review and comment within 30 days (Exhibit H). As of this date, no response has been received by this office. FORMER MILITARY MEMBER’S REVIEW OF AIR FORCE EVALUATION: The former military member refutes the basis of the applicant’s request that he deliberately lied when he filled out the DD Form 2656. He contends it was a mistake made in haste during the processing of his retirement. He acknowledges that his former spouse wants to have his record corrected to reflect former spouse coverage under SBP, and he does not wish to offer any evidence to the contrary. If there are retroactive costs associated with this matter, he requests DFAS-CL establish a reduced retirement payroll deduction in order that he can budget for the deductions (Exhibit J). 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. After thoroughly reviewing the evidence of record, we are persuaded the applicant is entitled to the relief she seeks. We are in agreement with the recommendation of the Air Force evaluation that no evidence of Air Force error was presented in this case; however, in the interest of justice, absent a competing claimant and any objection from the former military member in his response to the Air Force evaluation, the former military member’s records should be corrected to reflect the applicant submitted a valid request for former spouse coverage. Though we recommend relief, we note that premiums have not been paid toward SBP on the applicant’s behalf. Accordingly, we agree with the Air Force evaluation that approval should be contingent upon recovery of any retroactive costs that will be due as a result of the recommended correction. While we note the divorce decree contained language which stated the applicant “may elect SBP coverage, at her discretion, but only if she pays the entire cost thereof,” that agreement is unenforceable by the government or this Board. If the military member wishes to obtain reimbursement from his former spouse for the premiums that will be deducted from his retired pay as a result of the requested correction, he should seek reimbursement outside of this forum (e.g. either directly from his former spouse or through the Court, in accordance with the divorce decree). The former military member in his rebuttal, also indicated that if there are retroactive costs, he requests that he be able to reduce the amount deducted from his retirement pay in order to be able to budget for the deductions. Again, this is beyond this Board’s authority and the member should make that request to DFAS. Accordingly, we recommend the record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER MILITARY MEMBER be corrected to show that: a.  The applicant submitted a valid request for former spouse coverage based on full retired pay to be deemed on her behalf effective 3 December 2013. b.  Approval should be contingent upon recovery of appropriate retroactive costs. The following members of the Board considered AFBCMR Docket Number BC-2014-04713 in Executive Session on 18 Aug 15, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. Although chaired the panel, in view of her unavailability, due to retirement, has signed as Panel Chair. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04713 was considered: Exhibit A.  DD Form 149, dated 14 Nov 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letter, SAF/MRBR, dated 19 Nov 14. Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 14. Exhibit E.  Affidavit, Applicant, dated 1 Dec 14 Exhibit F.  Affidavit, Mil Member, dated 2 Dec 14. Exhibit G.  Memorandum, AFPC/DPFF, dated 8 Jan 15. Exhibit H.  Letter, SAF/MRBR, dated 25 Feb 15. Exhibit I.  Letter, SAF/MRBR, dated 25 Feb 15. Exhibit J.  Letter, Former Military Member, rcvd 1 Apr 15. 1 2