RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02899
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His records be corrected to show that he elected “Former Spouse” coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

His DD Form 2656-1, SBP Election Statement for Former Spouse Coverage, was not submitted within one year of the date of his divorce in error. He continued paying for SBP for five and a half years after the divorce not knowing that it needed to be converted to former spouse coverage. 

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

STATEMENT OF FACTS:

On 1 Apr 09, the applicant retired from active duty.

According to the AFBCMR SBP Marital Status Affidavit notarized on 7 Dec 15, the applicant has sworn/affirmed that on 6 Mar 93, he married his former spouse and they divorced on 19 Oct 09.  The applicant also indicated that he is not currently married.

According to the DD Form 2656, Data for Payment of Retired Personnel, on 23 Mar 09, the applicant elected spouse and child coverage based on full retired pay.

According to the divorce decree, the applicant’s former spouse was designated as the irrevocable SBP beneficiary.

According to the Affidavit of Single Status notarized on 11 Mar 16, the applicant’s former spouse has sworn that she is not currently married, was divorced on 19 Oct 09, and has never remarried. 

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the applicant’s request, indicating there is evidence of an injustice.  Despite the applicant’s failure to submit a valid former spouse election change, to deny his request would be to deny the former spouse an asset she was awarded by the court.

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, the former spouse is not eligible for annuity payments upon the member’s death.

The “Court Order Dividing Military Retired/Retainer Pay,” ordered the applicant’s former spouse to be designated as the irrevocable SBP beneficiary.  There is no record either party submitted a valid election to establish former spouse SBP coverage within the first year following their divorce as the law requires.  The Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) records reflected the former spouse as the eligible spouse beneficiary and premiums were deducted from the applicant’s retired pay until 7 May 15.  DFAS-CL suspended the spouse portion of the SBP retroactive to the date of his divorce after receiving the member’s 15 Apr 15 request (DD Form 2656-1) for former spouse and child coverage and refunded the overpaid premiums.  There is no evidence the applicant or his former spouse remarried, and accordingly, there is no competing claimant.

There is no evidence of Air Force error; however, to preclude an injustice, we recommend the member’s record be corrected to reflect that on 20 Oct 09, he elected to change SBP spouse and child to former spouse and child coverage based on full retired pay, naming his former spouse as the former spouse beneficiary.  Approval should be contingent upon recoupment of any applicable premiums.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 Feb 16 for review and comment within 30 days (Exhibit F).  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 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 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 APPLICANT be corrected to show that on 20 Oct 09, he elected former spouse and child coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse as the eligible former spouse beneficiary.  Approval should be contingent upon recovery of SBP premiums.

The following members of the Board considered AFBCMR Docket Number BC-2015-02899 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-2015-02899 was considered:

	Exhibit A.  DD Form 149, dated 9 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 12 Nov 15.
	Exhibit D.  Affidavits, Applicant, dated 7 Dec 15.
	Exhibit E.  Memorandum, AFPC/DPFFF, dated 20 Jan 16.
	Exhibit F.  Letter, AFBCMR, dated 19 Feb 16.