RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-02131

 							COUNSEL:  NONE

 							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

She be designated as the former spouse beneficiary under the Survivor Benefit Plan (SBP).  

APPLICANT CONTENDS THAT:

Her former spouse made her his beneficiary for his military benefits.  The Defense Finance and Accounting Service (DFAS) initially advised her she would receive the benefits so she submitted all of her paper work.  The second time she contacted DFAS, she was told that her former spouse was supposed to have changed the benefits after their divorce.  They were not aware of this requirement and his memory was also gone by this time.  

They were married for 46 and a half years, she knows he would have wanted her to be taken care of.  

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

STATEMENT OF FACTS:

On 13 July 1995 the former service member was discharged from the Air National Guard and placed on the Retired Reserve List.  He was retired on 15 October 2003 in the grade of Master Sergeant (MSgt, E-7).      

The parties were married on 21 November 1964 per the marriage certificate issued by the State of Colorado.

On 16 June 2011, the parties divorced.  The Property Settlement Agreement dated 10 May 2011, provided by the applicant, issued by the District Court of Thayer County, Nebraska states the applicant will receive “One half interest in the monthly pension received by the former service member through the United States Air Force Retirement.”  The Military Retired Pay Division Order states, “The former spouse, applicant’s name, is awarded 50 percent of the member’s disposable retired pay.”  However, it is silent on SBP.  

A death certificate issued by the State of Colorado reflects the former service member died on 24 February 2015.  It also reflects he was divorced at the time of his death.  

The applicant provides a signed, notarized SBP Marital Status Affidavit dated 4 August 2015 indicating she is currently not married and that her former spouse was not married at the time of his death.

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 D.    

DEFENSE FINANCE AND ACCOUNTING SERVICE EVALUATION:

DFAS-JBJE/CL states according to law they cannot provide a former spouse SBP annuity to the applicant.  However, should the Board change the record to award the applicant a former spouse SBP annuity; DFAS will adjust the account accordingly.

The former service member retired on 15 October 2003 and elected spouse and child SBP coverage.  The parties divorced on 16 June 2011.  The Separation Agreement of 10 May 2011 states the applicant was awarded 50 percent of the former service member’s disposal retired pay.  However, in order to establish a former spouse SBP beneficiary, the divorce decree must state the member maintains his former spouse as a SBP beneficiary and a deemed election from the former spouse or service member is required to be submitted to DFAS within one year of the divorce.  In this case, neither the former spouse nor the applicant submitted their dissolution of marriage decree of divorce in its entirety.  If the divorce decree is silent on SBP, the applicant is not eligible as a former spouse beneficiary.  If the original divorce decree was silent to former spouse SBP and the former service member was still living, an amended court order awarding the former spouse SBP could have been obtained and that would provide a new one-year period for the deemed former spouse SBP election.

The former service member did not notify DFAS of his divorce and continued to have monthly SBP premiums withheld from his military retired pay.  On 25 March 2015, an application for the SBP annuity was received as a result of the former service member’s death on 24 February 2015.  The applicant is the designated beneficiary to receive the former service member’s Arrears of Pay (AOP).  As a result, she is due payment of military retired pay for the period of 1 through 24 February 2015.  

A complete copy of the DFAS evaluation, with attachments, is at Exhibit D.  

APPLICANT'S REVIEW OF DFAS EVALUATION:

A copy of the DFAS evaluation was forwarded to the applicant on 9 March 2016 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 injustice.  In this respect we note that neither the former service member nor the applicant submitted a deemed election for former spouse SBP coverage within one year of their divorce as required by law.  However, we believed the former service member’s continued payment of the spouse SBP annuity with the applicant listed as the beneficiary, and his willingness to accept a reduction of his military pay since his retirement on 15 October 2003 until his death on 24 February 2015 indicative of his intent to designate the applicant as his SBP beneficiary.  Moreover, we note the applicant provides a signed, notarized affidavit dated 4 August 2015 indicating she is not married.  We are also persuaded that there are no competing interests as the former service member was not married at the time of his death and the applicant is the designated Arrears of Pay Beneficiary (AOP) beneficiary.  Although the applicant is unable to make a deemed election without a divorce decree, it does not prevent the Board from correcting the record to show that the former member made a timely election. Therefore, in the interest of justice, we recommend the former service member’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 17 June 2011, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming the APPLICANT as the former spouse beneficiary.  

The following members of the Board considered AFBCMR Docket Number BC-2015-02131 in Executive Session on 28 and 29 June 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 was considered:

	Exhibit A.  DD Form 149, dated 19 May 2015, w/atchs.
	Exhibit B.  Letter, SAF/MRBR, dated 24 July 2015.
	Exhibit C.  Affidavit, Applicant, dated 4 August 2015.
	Exhibit D.  Memorandum, DFAS-JBFE/CL, dated 26 February 
			  2016, w/atchs. 
	Exhibit E.  Letter, AFBCMR, dated 9 March 2016.  

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.