RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-03432
		
 						COUNSEL:   

 						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His former spouse be reinstated as his Survivor Benefit Plan (SBP) beneficiary.  

APPLICANT CONTENDS THAT:

The parties divorce degree legally directs his former spouse be designated as the SBP beneficiary.

His former spouse was erroneously directed by their mutual bankruptcy attorney to not file any military retirement or SBP paperwork until their bankruptcy cases were settled.  In the interim, she became ill with an undiagnosed life threatening illness and missed filing for the SBP benefits after their divorce by only one month.  She should not be penalized due to the extenuating circumstances.  He requested her to be his beneficiary and SBP premiums have been deducted.  With his permission, his former spouse is submitting records on his behalf.

His former spouse states that in January 2014, the applicant lost employment resulting in financial problems and that he stopped paying her the military retired pay she was entitled.  They were both focused on resolving their financial issues as result of his loss of employment and subsequent need for each of them to file for Chapter 7 bankruptcy.  They both signed the DD Form 2656-1, SBP Election Statement for Former Spouse Coverage,   prior to the one year period after their divorce.  However, she was advised by their bankruptcy attorney to not submit any forms to the Defense Finance and Accounting Service (DFAS) until after their bankruptcy matter was resolved.  During this time, she also spent a significant amount of time traveling between Colorado and Georgia to help her 82 year old mother.  The DD Form 2656-1 was submitted after the bankruptcy discharge and as soon as she was physically and psychologically able to do so.  

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

STATEMENT OF FACTS:

On 1 December 2005, the applicant was retired in the grade of major (O-4).  He was credited with 20 years and 6 days of active duty service.  

According to the divorce decree issued by El Paso County Colorado, the parties were married on 13 October 1984 and divorced on 9 January 2014.  The Separation Agreement incorporated in the divorce decree directs the applicant to designate his former spouse as the SBP beneficiary.  

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 included at Exhibit C.  

AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval.  There is no evidence of an Air Force error; however, to preclude an injustice, DPFFF recommends the record be corrected to reflect that on 10 January 2014 the applicant elected to change SBP spouse and child coverage to former spouse coverage based on the previously reduced level of retired pay, naming his former spouse as the eligibility beneficiary.   Approval should be contingent upon recovery of any applicable premiums.

The parties were married on 13 October 1984 and he elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 December 2005 retirement.  The parties divorced on 9 January 2014 and in the Separation Agreement and Parenting Plan, the applicant agreed to maintain the SBP for his former spouse.  The Separation Agreement also stated the “husband shall be responsible for changing the beneficiary designation from spouse to former spouse.”  There is no evidence either party submitted a valid former spouse election within the one-year period following their divorce as the law requires.  On 27 February 2015, his former spouse submitted to DFAS-CL the DD Form 2656-1.  However, DFAS-CL did not honor the election request since it was not the proper document for her to deem an election and it was also received more than one year after the divorce date.  On 25 March 2015, DFAS-CL suspended the spouse SBP coverage retroactive to the date of divorce, and issued the applicant a refund of overpaid premiums.  There is no evidence either party remarried.  

A persons eligibility as an SBP spouse beneficiary terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage: (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 their behalf.  In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the member to establish former spouse coverage.  If neither requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter.  The former spouse is not eligible for annuity payments upon the member’s death even though a member fails to notify DFAS of the divorce and continues to pay SBP premiums afterwards.  Despite the applicant’s failure to submit a valid former spouse election change, he did not request SBP coverage be terminated for his former spouse.  He accepted a reduction in retired pay over a year, indicative of his intent to maintain her as the eligible SBP beneficiary.  To deny the applicant’s request would deny his former spouse an asset the parties agreed she would retain.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On behalf of the applicant and former spouse, counsel provides signed, notarized affidavits from both parties dated 6 June 2016 indicating neither has remarried.  

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

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 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 APPLICANT be corrected to show that on 10 January 2014, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on the previous reduced level of retired pay, naming his former spouse as the beneficiary, contingent upon recovery of any applicable premiums.  

The following members of the Board considered AFBCMR Docket Number BC-2015-03432 in Executive Session on 28 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 was considered:

	Exhibit A.  DD Forms 149, dated 28 July and 7 August 2015, 
			  w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 5 April 2016.
	Exhibit D.  Letter, AFBCMR, dated 23 May 2016.
	Exhibit E.  Letter, AFBCMR, dated 23 May 2016.
	Exhibit F.  Letter, AFBCMR, dated 23 May 2016.
	Exhibit G.  Letter, AFBCMR dated 23 May 2016.
	Exhibit H.  E-mail, Counsel, dated 25 May 2016.
	Exhibit I.  Letter, Counsel, dated 7 June 2016, w/atchs.