RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01565 XXXXXXXXXX (DECEASED) COUNSEL: NONE XXXXXXXXXX (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show that he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She and her former spouse were married for 33 years before they divorced. However, he intended for her to remain the SBP beneficiary and continued to make SBP payments on her behalf. After her former spouse’s death, she contacted the Air Force SBP/Retiree Services Program Manager who advised her to complete Standard Form (SF) 1174, Claim for Unpaid Compensation of Deceased Member of the Uniformed Services. The Program Manager stated she should submit a request to the Air Force Board for Correction of Military Records (AFBCMR) to establish her eligibility. The Defense Finance and Accounting Service- Cleveland (DFAS-CL) advised her that her former spouse never changed the SBP coverage from spouse to former spouse after their divorce. Subsequently, DFAS-CL sent her an Automated Miscellaneous Voucher and a check in the amount of $17,380.54. In support of her request the applicant provides a personal statement, copies of DFAS-CL memoranda, an Internal Revenue Service Form 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, indicating a gross distribution in the amount of $17,380.54 and various other documents associated with her appeal. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System, the former member retired from the Regular Air Force effective 1 January 1987. According the former member’s death certificate of death, his date of death is 25 September 2014. According to DFAS-CL Automated Miscellaneous Voucher, dated 13 January 2015, DFAS-CL issued the applicant a check in the amount of $17,380.54 for 100 percent Arrears of Pay (AOP). The amount included an SBP refund in the amount of $15,516.54 for the period 26 September 2008 through 31 August 2014. According to an AFBCMR SBP Marital Status Affidavit notarized on 19 May 2015, the applicant has sworn/affirmed that neither she nor her former spouse was currently married. In an email dated 25 January 2016, DFAS confirmed AOP in the amount of $17,380.54 was issued to the applicant, which included an SBP refund of premiums in the amount of $15,516.54. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. There is no evidence of Air Force error in this case and absent a competing claimant, the former member’s record should be corrected to reflect that on 14 November 2002, he submitted a valid election for former spouse coverage based on full retired pay, naming the applicant as the eligible beneficiary. Approval should be contingent upon recovery of any applicable premiums. The former member and the applicant were married on 16 August 1969, and he elected spouse and child coverage based on full retired pay prior to his 1 January 1987 retirement. The youngest child lost eligibility in July 1992 due to age. The parties divorced on 13 November 2002, and the divorce decree did not address SBP. There is no evidence the former member submitted a valid election to voluntarily change spouse to former spouse coverage within the first year following their divorce as the law requires. DFAS-CL records continued to reflect the applicant’s name and date of birth as the eligible spouse beneficiary and premiums continued to be deducted from the member’s retired pay until his 25 September 2014 death. Although the applicant’s name and date of birth were listed as the spouse SBP beneficiary, her eligibility to receive an SBP annuity terminated upon her divorce. However, the former member’s willingness to accept a reduction in his retired pay even though he had no eligible beneficiary for over 13 years is indicative of his intent to maintain SBP coverage on the applicant’s behalf. There is no evidence either party remarried, and accordingly, there is no competing claimant. 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 27 October 2015, for review and comment within 30 days. As of this date this office has not received a response (Exhibit D). 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 injustice. After carefully reviewing this application, we agree with the recommendation of the Air Force office of primary responsibility and agree with some of the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. The OPR did not address the potential competing interest (AOP Designation). Nonetheless, we note DFAS has certified that the applicant is the sole AOP beneficiary; therefore, the possibility of a competing interest is eliminated. Although the divorce decree is silent on the SBP, as noted by the OPR, the former member’s willingness to accept a reduction in his retired pay even though he had no eligible beneficiary for over 13 years is indicative of his intent to maintain SBP coverage on the applicant’s behalf. Therefore, we recommend the records be corrected to reflect that the former member made a valid election based on full retired pay effective 14 November 2002, naming his former spouse as the eligible former spouse beneficiary. Approval should be contingent upon recovery of any SBP premiums that will be due as a result of the recommended correction. 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 FORMER MEMBER, be corrected to show that: a. On 14 November 2002, he made a timely and effective election for former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay. b. On 25 September 2014, the applicant submitted a timely and effective claim for survivor benefit annuity. c. Approval should be contingent upon recovery of SBP premiums. The monthly SBP annuity will be applied to the premium debt until the total amount of premiums owed is recovered. The following members of the Board considered AFBCMR Docket Number BC-2015-01565 in Executive Session on 11 May 2016, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 April 2015, w/atchs. Exhibit B. Member’s Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 5 August 2015. Exhibit D. Letter, SAF/MRBR, dated 27 October 2015.