RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-02106
		
  						COUNSEL:  NONE

  APPLICANT: 					HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her deceased former husband’s Survivor Benefit Plan (SBP) election be change to Former Spouse coverage.

APPLICANT CONTENDS THAT:

Based on the divorce decree dated 3 Oct 05, the SBP election should be changed to former spouse coverage.  Neither her attorney, her ex-husband, nor she were aware this election was required.  In support of her request, she provides copies of her separation and property agreement, judgement of absolute divorce, and the death certificate.  

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

STATEMENT OF FACTS:

The deceased former military member initially entered the Regular Army on 27 Nov 44 and then subsequently enlisted and served with the Regular Air Force.

On 5 May 50, the former military member divorced.  

On 7 Aug 50, the former military member notified his commanding officer his intent to marry.  

On 19 Aug 50, the applicant and the former military member were married.

On 1 May 75, the deceased former military member retired from the Air Force.

On 3 Oct 05, according to the State of North Carolina, General Court of Justice District Court Division divorce decree, the parties divorced and in the separation agreement and property settlement agreement, the former military member agreed to continue to maintain his wife as his surviving spouse and sole beneficiary of the survivor annuity.  

On 14 Jan 15, according to the North Carolina Department of Health and Human Services death certificate, the former member died and his marital status was divorced.  

A person’s eligibility as an SBP spouse beneficiary terminates upon divorce; however, Title 10 U.S.C., Sections 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.

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the applicant’s request, indicating there is evidence of an error or injustice.  Despite the decedent’s failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce, indicative of his intent for her to remain eligible for his SBP.  Spouse premiums were deducted from the member’s retired pay until 1 Oct 08, when the paid-up SBP provision became effective.  DFAS-CL records continued to erroneously reflect the applicant as the eligible spouse beneficiary until his 14 Jan 15 death.  There is no evidence either party remarried, and accordingly, there is no competing claimant.  AFPC/DPFF recommends, absent a competing claimant, the member’s record be corrected to reflect on 4 Oct 05, he submitted a valid election for former spouse coverage based on the previous reduced level of retired pay, naming the applicant as the eligible beneficiary.  Approval should be contingent upon recovery of any applicable premiums.  To deny the applicant’s request would be to deny an asset awarded to her by the court.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 24 Jun 16, AFBCMR emailed the applicant the Arrears of Pay (AOP) affidavit for her children (Exhibit E).

On 19 Jul 16, the applicant provided copies of the affidavits from each of the four children relinquishing their competing interest they have in the AOP (Exhibit F).

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 in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility (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 MEMBER be corrected to show that on 4 October 2005, he elected former spouse coverage under the Survivor Benefit Plan based on the previous reduced level of retired pay, naming the APPLICANT as the beneficiary.  Approval is contingent upon the recovery of any applicable premiums.

The following members of the Board considered AFBCMR Docket Number BC-2015-02106 in Executive Session on 25 Aug 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-2015-02106 was considered:

	Exhibit A.  DD Form 149, dated 18 May 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 25 Mar 16.
	Exhibit D.  Letter, AFBCMR, dated 28 Mar 16.
	Exhibit E.  Email, AFBCMR, dated 24 Jun 16, w/atch.
	Exhibit F.  Arrears of Pay Affidavits, dated 19 Jul 16.

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 that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.