RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 	DOCKET NUMBER: BC-2015-01924

					COUNSEL:  NONE

		HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

He was ordered by the court to keep his former spouse as the beneficiary for SBP.  He was not aware of the requirement to submit an election for former spouse coverage within one year following their divorce.

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

STATEMENT OF FACTS:

On 17 Apr 01, the applicant was released from his then current Air Force Reserve assignment and transferred to the Retired Reserve Section awaiting retirement pay at age 60 (20 Jan 09).

On 5 Feb 02, the applicant was notified that as of 8 Sep 01, he had accumulated sufficient points for retired pay and he was eligible to participate in the Reserve Component Survivor Benefit Plan (RCSBP). 

On 27 Mar 02, the applicant completed an ARPC Form 123, Reserve Component Survivor Benefit Election Certificate, electing “spouse only” coverage with Option C, “immediate annuity.”

On 20 Jan 09, the applicant retired, was placed on the Retired List and was credited with 27 years, 4 months and 11 days of service.

On 24 Oct 13, the applicant and his former spouse were divorced.  The divorce decree stipulated that the applicant must maintain his former spouse as surviving spouse with 100 percent survivor benefits. 

On 19 May 15, DFAS notified the applicant they adjusted the Survivor Benefit Plan from spouse to former spouse with an effective date of 1 Nov 13.  Because it was a retroactive change, the record reflected he had been overcharged.  He was credited back the overpayment.  

On 10 Dec 15, AFBCMR notified the applicant, his current spouse and former spouse they needed to complete and sign notarized marital status affidavits (Exhibit E).  All submitted signed notarized responses.  In the applicant’s submitted affidavit, his current spouse indicates that having been fully advised of her right to SBP benefits; she relinquishes any competing interest she may have in the benefits in favor of her spouse’s former spouse.  (Exhibit F).

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF indicates that they provide no recommendation since the request involves two potential competing beneficiaries

DPFFF state a spouse’s eligibility to receive an SBP annuity terminates upon divorce.  However, there are two mechanisms for changing spouse coverage to former spouse coverage.  The service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf.  One of these actions must be exercised within the first year following the divorce.  In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage.  If neither party requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter.  If the service 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 service member’s death.

The applicant, a Reservist, was married to his former spouse on 7 Aug 74.  He completed the DD Form 2656, Data for Pay of Retired Personne1, prior to attaining age 60; however, he failed to elect a beneficiary category and level of coverage which invalidated his election.  The Defense Finance and Accounting Service – Cleveland (DFAS-CL) established spouse only SBP coverage based on full retired pay to comply with law and his retired pay commenced on 20 Jan 09.  The parties divorced on 24 Oct 13, and he was ordered to maintain his former spouse as the beneficiary for survivor benefits.  There is no evidence the applicant or the former spouse submitted a valid former spouse election during the required time frame following their divorce.  The Defense Enrollment Eligibility Reporting System (DEERS) records reflects the applicant married his current spouse on 11 Jul 14, but failed to notify the finance center of his change in marital status or request SBP spouse coverage for his new wife.  DFAS-CL records erroneously reflect the applicant’s former spouse as the eligible spouse beneficiary.  SBP premiums were deducted from the applicant’s retired pay until May 15, when DFAS-CL suspended the SBP spouse coverage retroactive to the date of his divorce, and refunded the overpaid premiums.  The applicant’s current spouse became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage. 

A complete copy of the AFRPC/DPFFF evaluation, with attachments, 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 Sep 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 injustice.  In that regard, the evidence is sufficient to establish the applicant intended to retain the same beneficiary before and after his divorce and was unaware he needed to make a former-spouse election.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant’s record should be corrected to reflect he submitted a valid request for former spouse coverage under the Survivor Benefit Plan (SBP) within a year of the divorce from his former spouse.  We note the applicant has provided a signed and notarized affidavit from his current spouse relinquishing any interest in survivor benefits in favor of the former spouse and indicating it was the applicant’s intent to continue SBP coverage for his now former spouse, in compliance with the court order.  Based on the notarized affidavit from the current spouse, dated 29 Dec 15, in our view, the possibility of a competing claimant is eliminated.  Accordingly, we recommend the applicant’s record be corrected to the extent indicated below, contingent upon recovery of any SBP premiums that will be due as a result of the recommended correction.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 25 October 2013, he elected former spouse coverage based on full retired pay under the Survivor Benefit Plan (SBP), naming his former spouse as the former spouse beneficiary.

The following members of the Board considered AFBCMR Docket Number BC-2015-01924 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-2015-01924 was considered:

	Exhibit A.  DD Form 149, dated 6 May 15, w/atchs.
	Exhibit B.  Applicant’s, Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF dated 11 Aug 15, w/atchs.
	Exhibit D.  Letter, SAF/MRBC, dated 29 Sep 15.
	Exhibit E.  Letters, AFBCMR, dated 10 Dec 15, w/atchs.
Exhibit F.  Affidavits, Applicant and Current Spouse, dated 29 Dec 15 and Former Spouse, dated 14 Jan 16.