RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-00687 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her former husband’s military records be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP) naming her as beneficiary. APPLICANT CONTENDS THAT: By court order, she is to continue to be listed as the SBP beneficiary for which her former spouse paid premiums for 14 years. She and her husband divorced on 17 Oct 13 and as part of the settlement, he was to continue SBP coverage listing her as the beneficiary. Shortly before the one year deadline for submitting a former spouse election, she found out her former spouse had not submitted the appropriate paperwork to continue coverage. Upon discovering this, she took swift action in submitting the DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component(RC) SBP Request For Deemed Election, however; she was five days late and on 27 Oct 14, received a letter from Defense Finance and Accounting Service (DFAS) denying her application. On 21 Nov 14, her former spouse submitted an application which was further denied by DFAS on 3 Dec 14. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to Air Force Board for Correction of Military Records (AFBCMR) Survivor Benefit Program – Marital Status Affidavit, submitted by the applicant, she and her former spouse married on 25 Sep 82. According to AFBCMR Survivor Benefit Program – Marital Status Affidavit, submitted by the applicant, her former spouse retired from military service on 29 Aug 99. The applicant and her former spouse divorced on 17 Oct 13. The division of marital property included in the final judgment of divorce issued by the Superior Court of Guam, states the former member was ordered to continue SBP coverage and the applicant is to be kept as the beneficiary. The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR) included at Exhibit B. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval based on the applicant’s court- ordered agreement to have her former spouse continue SBP coverage. The applicant and her former spouse divorced on 17 Oct 13 and in the Marital Settlement Agreement, incorporated in the divorce decree, the former member agreed to continue the SBP and designate the applicant as the beneficiary. There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. DFAS Cleveland Center (DFAS-CL) suspended the spouse portion of the SBP retroactive to the date of divorce and refunded the overpaid premiums after receiving the applicant’s invalid DD Form 2656-10, dated 23 Oct 14 for former spouse coverage. 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-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 complete 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’s counsel and former spouse on 2 Jul 15 for review and comment within 30 days (Exhibits D and E). 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, including attachments, in judging the merits of the case and agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Therefore, we recommend the applicant's records 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 issues 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 the APPLICANT be corrected to show that XXXXXXX submitted a valid request that former spouse coverage based on full retired pay be deemed on her behalf, effective October 18, 2013 and that correction is contingent upon recovery of appropriate retroactive costs. All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00687 was considered: Exhibit A. DD Form 149, dated 12 Feb 15, w/atchs. Exhibit B. Applicant and Former Member, Marital Status Affidavit Responses, dated 20 Apr 15, w/atchs. Exhibit C. Memorandum, DPFFF, dated 1 Dec 14. Exhibit D. Letter – Applicant’s Counsel, SAF/MRBR, dated 2 Jul 15, w/atchs. Exhibit E. Letter – Former Member, SAF/MRBR, dated 7 Sep 14.