RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02640
		
               	          COUNSEL:  YES

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Corrective action be taken to change his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

APPLICANT CONTENDS THAT:

In 2008, a divorce decree awarded SBP rights to his former spouse. 

In 2010, the applicant remarried; however, he divorced his second spouse in 2015.  The 2015 divorce decree honored the 2008 divorce decree from his first marriage by relinquishing SBP rights to his first former spouse. 

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

STATEMENT OF FACTS:

On 31 Oct 06, the applicant was furnished an honorable discharge, and was credited with 24 years, 7 months, and 25 days of active service.

On 14 Feb 88, the applicant and his first spouse were married. The applicant retired on 1 Nov 06 without initiating an SBP election; therefore, the Defense Financial Services Agency (DFAS), established by law spouse only SBP coverage based on full retirement. 

On 31 Dec 08, the applicant and his first spouse divorced with the divorce decree awarding his now former spouse SBP.  However, DFAS has no evidence the applicant or his former spouse filed for former spouse SBP coverage within one-year (by 30 Dec 09) of the divorce decree.  The applicant offers no explanation of why he waited until now to correct his SBP plan to former spouse. 

On 23 Apr 10, the applicant married his second spouse.  By law, she became the eligible SBP beneficiary on the first anniversary of their marriage.  The applicant and his second spouse divorced on 15 Jun 15.  The divorce decree stipulated that any rights to the applicant’s pension were already awarded to the applicant’s first former spouse by court decree in 2008.  The second, now former spouse, understood and agreed to this provision.  Thus, there are no competing claimants for the applicant’s SBP. 

AFPC/DPFF stated that premiums for the applicant’s SBP coverage continued to be paid until 1 Oct 15 but were suspended when the DFAS received a copy of the divorce decree.   

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

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the applicant’s request to preclude an injustice.  There is no evidence that an error has occurred.  The applicant nor his former spouse changed the SBP election to former spouse within the time prescribed by law.  However, if denied the first former spouse would be denied the SBP survivorship rights awarded by court decree in their divorce.

If granted, AFPC/DPFFF recommends the applicant’s record be corrected to show on 13 Oct 09 {sic}, he changed his SBP election from spouse to former spouse coverage based on full retired pay. This approval would be contingent on recoupment of any premiums that are due.
 
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 9 Nov 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to preclude an 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 that the applicant’s former spouse would suffer an injustice if the applicant’s SBP election were not changed to former spouse as specified in their divorce decree.  The Board notes that the OPR mistakenly recognized the actual divorce date of the initial marriage, thereby, proposing an improper correction of the record.    Regardless, we note the applicant remarried and divorced again, with the subsequent divorce decree recognizing the initial former spouse’s designation as beneficiary of the applicant’s SBP entitlement.  Thus, there are no competing interests in the applicant’s SBP election.  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 APPLICANT be corrected to show that on 30 Dec 09 he elected to change his Survivor Benefit Plan (SBP) election from Spouse Only to Former Spouse, naming  as the eligible beneficiary contingent on recoupment of any SBP premiums that are due. 

The following members of the Board considered AFBCMR Docket Number BC-2015-02640 in Executive Session on 4 Nov 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-2015-02640 was considered:

	Exhibit A.  DD Form 149, dated 16 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 14 Oct 15 w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 6 Nov 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 that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.