RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00482 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be listed as the former spouse on her ex-husband’s Survivor Benefit Plan (SBP) coverage. APPLICANT CONTENDS THAT: She was married to the decedent for 33 years and their divorce decree requires she receive SBP benefits, according to the Former Spouses’ Act 10 U.S.C. 1408. She claims she wasn’t aware she was not listed by name as spouse or former spouse until a Veterans Service office advised her to call the Defense Finance and Accounting Service (DFAS). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information provided by the applicant: On 5 Jul 58, the deceased former member and the applicant were married. On 1 Apr 75, the deceased former member retired from military service. On 9 Feb 89, the deceased former member and the applicant divorced. On 18 May 15, the former member died. According to information provided by DFAS, the applicant is the Arrears of Pay (AOP) beneficiary on file. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends to grant the applicant’s request to change the deceased former member’s record to show [the applicant] submitted a valid request for former spouse coverage, indicating there is evidence of an error or injustice. 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. Even though a member fails to notify DFAS of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member’s death. There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires and there is no evidence either party has remarried. [Although neither actions 1) or 2) above has occurred] DFAS records erroneously reflect the applicant’s name and date of birth as the eligible spouse beneficiary. Defense Enrollment Eligibility Reporting System (DEERS) reflects the decedent and the applicant married on 5 Jul 58. He elected spouse and child SBP, coverage based on a reduced level of retired pay prior to his 1 Apr 75 retirement. The youngest child lost eligibility in July 1987, due to age. The parties divorced on 9 Feb 89, and the Marital Dissolution Agreement states the deceased former member will continue to pay and maintain the SBP for the applicant, and “provide for the maximum allowable rate of survivor benefits.” Public Law 105-261(17 Oct 98) authorized SBP participants who reach age 70 and whose retired pay has been reduced for 360 months (30 years) or more, to not be required to pay monthly premiums. Spouse SBP premiums were deducted from the decedent’s retired pay until 1 Oct 08, when the requirement for the paid-up SBP provision was met. There is no evidence of Air Force error or competing claimant in this case; therefore, it would be appropriate to enforce the parties’ court-ordered agreement to continue SBP coverage, an asset the court apparently intended to award the applicant. It is recommended the decedent’s record be corrected to show the applicant submitted a valid request for former spouse coverage, based on the previous reduced level of retired pay, be deemed on her behalf effective 10 Feb 89. Correction should be contingent upon recovery of appropriate retroactive costs. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 19 Jun 15 for review and comment within 30 days (Exhibit D). 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. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Additionally, with the DFAS information to verify the applicant is the AOP beneficiary on file, the Board finds no evidence of a competing interest. 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 DECEASED FORMER MEMBER be corrected to show that on 10 February 1989, ----------- submitted a valid request for former spouse coverage to be deemed on her behalf under the Survivor Benefit Plan (SBP), based on the previous reduced level of coverage. The following members of the Board considered AFBCMR Docket Number BC-2015-00482 in Executive Session on 18 Nov 15 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 A. DD Form 149, dated 28 Jan 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 19 Mar 15. Exhibit D. Letter, SAF/MRBR, dated 19 Jun 15.