RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-00889

 							COUNSEL:  NONE
  
    							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The former service member’s records be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP)naming her as the designated beneficiary.  

APPLICANT CONTENDS THAT:

Her former spouse was directed by court order to continue participation in the SBP, however; he suspended the program in November 2013 shortly after their divorce was final.  

After his death, she contacted the Defense Finance and Accounting Service (DFAS) about SBP and was informed that a spouse loses eligibility for SBP upon divorce unless a deemed election form is submitted within one year.  Neither she nor her attorney was aware of this requirement.  

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

STATEMENT OF FACTS:

The former service member retired on 1 September 1989.  

According to the AFBCMR Survivor Benefit Program – Marital Status Affidavit, submitted by the applicant, she and her former spouse married on 19 July 1983.  

The parties divorced on 9 November 2012.  The division of marital property included in the final judgment of divorce issued by the State of Virginia, Circuit Court of the City of Newport News, states the former service member must participate in the SBP designating the applicant as the beneficiary.  

According to the death certificate issued by the State of South Carolina, the former service member died on 4 October 2014.

The former service member’s retired military pay records reflect the applicant is not the Arrears of Pay (AOP) beneficiary on file; however, the AOP beneficiary is ineligible to receive the SBP annuity due to the former service member’s death prior to their one-year anniversary of marriage.  

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 D.    

AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval, absent a competing claimant, indicating there is no evidence the Air Force erred in this case.  The applicant and the member were married on 19 July 1983, and he elected spouse and child coverage based on a reduced level of retired pay prior to his 1 September 1989 retirement.  The youngest child lost eligibility in July 2008 due to age.  The parties divorced on 9 November 2012 and in the Separation Agreement incorporated in the divorce decree, the member was ordered to participate in the SBP and to designate the applicant as the beneficiary.  There is no evidence either party submitted a valid election to change spouse to former spouse coverage during the required time following their divorce.  DFAS suspended SBP costs effective the date of their divorce.  The applicant remarried on 14 February 2013; however, this marriage does not affect her SBP eligibility as she was over age 55 at that time.  Defense Enrollment Eligibility Reporting System (DEERS) records reflect the former service member married his spouse on 14 May 2014; however, she is not eligible to receive an SBP annuity because the member died on 4 October 2014, seven months before the one-year anniversary of their marriage.   

A person’s eligibility to receive a spouse SBP annuity terminates upon divorce; however, Title 10 U.S.C., Sections 1448(b)(3) and 1450(f)(3) provide 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.

A complete copy of the AFPC/DPFFF evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9 September 2015 for review and comment within 30 days (Exhibit 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.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the FORMER SERVICE MEMBER be corrected to show that on 10 November 2012, he submitted a valid election for former spouse coverage under the Survivor Benefit Plan (SBP) based on the previous reduced level of retired pay, naming APPLICANT as the eligible beneficiary, contingent upon recovery of any applicable premiums. 

The following members of the Board considered AFBCMR Docket Number BC-2015-00889 in Executive Session on 2 and 17 March 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00889 was considered:

Exhibit A.  DD Form 149, dated 26 Feb 15, w/atchs.
	Exhibit B.  Letter, SAF/MRBR, dated 24 Apr 15, w/atch.
	Exhibit C.  Affidavit, Applicant, dated 15 May 15.
Exhibit D.  Memorandum, AFPC/DPFFF, dated 23 Jul 15.
	Exhibit E.  Letter, SAF/MRBR, dated 9 Sep 15.