RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03627

 			  			COUNSEL:  NONE

 						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

Per their divorce decree, she should be designated as the SBP beneficiary.   Her former spouse is in agreement.  

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

STATEMENT OF FACTS:

The retired service member entered the Regular Air Force on 28 April 1989 and was placed on the Temporary Disability Retired List (TDRL) on 28 November 2012.  On 8 January 2014, he was removed from the TDRL and retired in the grade of Master Sergeant (MSgt, E-7).  He was credited with 23 years, 7 months and 1 day of active duty service.  

According to the marriage certificate issued by the State of Texas, the parties married on 10 November 1989.

The petition for Dissolution of Marriage dated 1 March 2013 states “Life Insurance/Survivor Benefit:  Order that respondent keep petitioner as a beneficiary to all life insurance or survivor benefits as requested in this petition.”  

The parties divorced on 30 August 2013 and the decree of Dissolution of Marriage is silent on SBP.  The divorce decree states that interests in retirement benefits would be determined through a Qualified Domestic Relations Order (QDRO).  

The applicant provides a signed, notarized SBP-Marital Status Affidavit (Former Spouse) dated 13 June 2016 which states neither her nor her former spouse are currently married.

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.    

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial.  There is no evidence of Air Force error or injustice.   A persons eligibility as an SBP spouse beneficiary terminates upon divorce; however 10 U.S.C. § 1448(b)(3) and 1450(f)(3) provide 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.

The parties were married on 10 November 1989 and he elected spouse only SBP coverage based on full retired pay prior to being placed on the TDRL effective 29 November 2012.  The petition for Dissolution of Marriage dated 1 March 2013 contains language requesting the member keep the applicant as a beneficiary to all life insurance or survivor benefits; however, the parties divorced on 30 August 2013 and in the Decree of Dissolution of Marriage, Part A, 2D - Retirement Pensions, Profit Sharing and/or 401k Accounts, were determined to be awarded through a QDRO.  There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires.  DFAS-CL records continue to erroneously reflect the applicant’s name and date of birth (9 June 1970) as the eligible spouse beneficiary and premiums continue to be deducted from the member’s retired pay.  

If the Board’s decision is to grant relief, the retired service member’s record should be corrected to show that the applicant submitted a deemed election for former spouse SBP coverage based on full retired pay be established effective 31 August 2013.  Approval should be contingent upon the applicant providing a certified copy of the QDRO entitling her to former spouse SBP coverage.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant and the former service member on 27 May 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  Having carefully reviewed the applicant’s complete submission, we are unable to grant the applicant’s request per 10 U.S.C. § 1448(b)(3) and 1450(f)(3) which requires a former spouse to  submit legal documentation directing the former spouse SBP coverage for a deemed election. In this case, the applicant provides a copy of the petition for Dissolution of Marriage dated 1 March 2013 which includes verbiage that the former service member was to keep the applicant as the beneficiary to all life insurance or survivor benefits.  However, the parties divorced on 30 August 2013 and the Decree of Dissolution of Marriage indicates a QDRO would determine the sharing of retirement pensions.  Unfortunately, the applicant did not provide a copy of the QDRO.  It appears there are no competing interests in this case as the SBP affidavit dated 13 June 2016 indicates neither the applicant nor the former service member remarried and we are further persuaded the former service member intended to designate his former spouse as his SBP beneficiary as evidenced by his continued payment of SBP premiums naming her as the erroneous spouse SBP beneficiary; however, we are unable to consider the applicant’s request without a certified copy of the QDRO or court order directing the former spouse SBP.  Therefore, we 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 not sustained her burden of proof that she has been the victim of an error or injustice.  However, should the applicant provide a copy of the QDRO or court order directing the former spouse SBP, the Board would be willing to reconsider her request.  In the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.  

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-03627 in Executive Session on 25 August and 6 December 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Forms 149, dated 4 March 2016 and 11 August 
			  2016, w/atchs.
	Exhibit B.  Service Member’s Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 29 March 2016, w/atch.
	Exhibit D.  Memorandum, AFPC/DPFFF, dated 12 May 2016.
	Exhibit E.  Letters, AFBCMR, 27 May 2016.
	Exhibit F.  Affidavit, Applicant, dated 13 June 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.