RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-01724
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS:

She be designated the former spouse beneficiary on her deceased former spouse’s Survivor Benefits Program (SBP).

APPLICANT CONTENDS:

Her deceased former spouse retired from active duty on 1 Dec 74, and elected spouse and child SBP coverage.  Their youngest child lost eligibility and the SBP reverted to spouse-only coverage.  On 1 Oct 08, the SBP account was paid in full.  On 10 Jun 11, she and her former spouse divorced.  It was a simple divorce without a lawyer involved, and her former spouse told her he would continue to keep her listed on his SBP for survivor benefits.  He never remarried.  Despite her former spouse’s failure to submit a valid election making her the former spouse beneficiary, he did not request she be removed as the SBP beneficiary following their divorce, indicating he intended her to remain the beneficiary. 

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

STATEMENT OF FACTS:

The applicant’s former spouse served in the Regular Air Force, obtaining the grade of Master Sergeant.  

On 30 Nov 74, the deceased former member retired, and was credited with 20 years, 6 months, and 22 days of active service.

According to the documentation submitted by the applicant, her former spouse passed away on 3 Apr 15. 

On 20 May 16, the applicant submitted a notarized affidavit confirming that neither she nor her former husband remarried after their divorce. 

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting, indicating there is evidence of an error or injustice.  A person’s eligibility as an SBP spouse beneficiary terminates upon divorce; however, Title 10 United States Code (USC), §§ 1448(b)(3) and 1450(f)(3) provide the mechanisms for changing spouse coverage to former spouse coverage.  To request the change, one of the following actions must be exercised within the first year of 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 stating the member agreed to provide the coverage or a signed court order 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 the Defense Finance and Accounting Service-Cleveland Center (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.  Further, Title 10 USC, § 1452(j) states SBP participants who reach age 70 and whose retired pay has been reduced for 360 months (30 years) or more, are not required to pay monthly premiums effective 1 Oct 08.  

The applicant and the deceased former member were married on 2 Dec 61, and he elected spouse and child coverage based on a reduced level of retired pay prior to his 1 Dec 74 retirement.  The youngest child lost eligibility due to age on 1 Jul 92.  Spouse SBP premiums were deducted from the member’s retired pay until 1 Oct 08, when the paid-up SBP provision became effective.  The parties divorced on 10 Jun 11, and the divorce decree did not address the SBP.  There is no evidence the member voluntarily submitted a valid election to change spouse to former spouse coverage during the required time following their divorce.  DFAS-CL records continued to erroneously reflect the applicant’s name and date of birth as the eligible spouse beneficiary.  The former member died on 3 Apr 15.  There is no evidence either party remarried, and accordingly, there is no competing claimant.  

Absent a competing claimant, recommend the deceased former member’s record be corrected to reflect on 9 Jun 12, the former member submitted a valid election for former spouse coverage based on the previous level of reduced retired pay, naming his former spouse as the eligible beneficiary.  

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 29 Oct 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:

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 AFPC/DPFFF 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 deceased former member’s records be corrected as indicated below

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the deceased former member be corrected to show on 9 June 2012, he submitted a valid election for former spouse coverage based on his previous level of reduced retired pay, naming the APPLICANT as the eligible beneficiary.  

The following members of the Board considered AFBCMR Docket Number BC-2015-01724 in Executive Session on 11 May 16 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-2015-01724 was considered:

	Exhibit A.  DD Form 149, dated 20 Apr 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 14 Oct 15.
	Exhibit D.  Letter, SAF/MRBR, dated 29 Oct 15.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.