RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01662 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His election for spouse only coverage under the Survivor Benefit Plan (SBP) be changed to former spouse.

APPLICANT CONTENDS THAT:

He was informed last year that the requirement for assignment of survivor benefits to his former spouse was not included as specified, even though monthly SBP deductions to retirement pay continued for 30 years.  Upon his divorce, he submitted a copy of his divorce decree outlining the conditions to name his former spouse the SBP beneficiary and it appeared to him these conditions were satisfied by the Air Force.

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

STATEMENT OF FACTS:

On 1 Jun 75, the applicant retired from the Regular Air Force and was credited with 21 years, 2 months and 19 days of active service. 

On 23 Apr 75, the applicant elected not to participate in the SBP.

On 7 Jun 17, a request for affidavits was forwarded to the applicant (Exhibit F).  As of this date, no response has been received by this office.

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

AIR FORCE EVALUATION:

AFPC/DPFFF, based on guidance by the Air Force Board for Correction of Military Records (AFBCMR) on 18 Mar 04, forwards their request without a recommendation because it involves two potential SBP beneficiaries.  A person’s eligibility to receive a spouse SBP annuity terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage.  One of the following actions must be taken within the first year following 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 the member agreed, or the court ordered the member 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 DFAS-Cleveland (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 applicant married his former spouse on 7 Dec 56, and he declined SBP coverage prior to his 1 Jun 75 retirement.  Pay records reflect the applicant elected spouse-only SBP coverage based on a reduced level or retired pay during the open enrollment period authorized by Public Law 97-35 (1 Oct 81 – 30 Sep 82).  The parties divorced on 17 Nov 87, and in the divorce decree the applicant agreed to maintain the SBP for the benefit of his former spouse.  There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires.  DEERS records reflect the applicant married his current spouse on 4 Dec 87, but he did not notify DFAS of the change in his marital status nor request that spouse coverage be established on her behalf.  Nevertheless, the current spouse became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage.  DFAS records erroneously continued to reflect the former spouse as the eligible spouse beneficiary, and SBP premiums were deducted from the applicant’s retired pay until 12 Mar 15, when DFAS was notified of his divorce.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues that his former spouse is the beneficiary for his SBP.  He reiterates that even though he and his former spouse divorced 30 years ago and he has remarried since then, the beneficiary did not change.  Additionally, the applicant points out the AFBCMR letter was incorrectly addressed to his former spouse.

A complete copy of the applicant’s letter, with attachments, is at Exhibit E.

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.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that the applicant’s records should be changed to make his former spouse an eligible SBP beneficiary.  While we do not take issue with the applicant’s assertion that his divorce decree ordered him to continue coverage for his former spouse under the SBP, we note neither an election by the applicant nor a deemed election by the former spouse was received within the one-year period of their divorce as required by law.  Furthermore, we have been advised by the office of primary responsibility a competing interests exists, and in cases involving competing interests, this Board has been advised not to consider such cases unless a court of competent jurisdiction has ruled in the case or remands the case to the Board to make a determination.  Therefore, we are precluded from granting the applicant SBP benefit.  However, the Board would like to point out that if the applicant’s current spouse was to provide a notarized consent relinquishing the benefit, or complete the Survivor Benefit Program – Release of Arrears of Pay (AOP) affidavit, the Board is willing to reconsider the applicant’s request.  Otherwise, the applicant’s only recourse is to return to a court of competent jurisdiction to have the issue decided.  Therefore, 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-2016-01662 in Executive Session on 29 Aug 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01662was considered:

	Exhibit A.  DD Form 149, dated 17 Apr 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 19 Sep 16.
	Exhibit D.  Letter, AFBCMR, dated 3 Feb 17, w/atch.
	Exhibit E.  Letter, Applicant, dated 27 Feb 17, w/atchs.
	Exhibit F.  Letter, AFBCMR, dated 7 Jun 17, w/atchs.

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.