RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-02242
		
						COUNSEL:  
(SERVICE MEMBER)

						HEARING DESIRED:  NO
(APPLICANT)

APPLICANT REQUESTS THAT:

Her former spouse’s records be corrected to reflect he made an election for former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

Per her divorce decree, her former spouse and his lawyer were to complete the paperwork to submit to the Defense Finance Accounting Service (DFAS) to elect her as the former spouse beneficiary, along with their two sons.

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

STATEMENT OF FACTS:

The service member initially entered the Air Force Reserve on 4 Dec 80.  

By Special Order Number AA-005, the service member was retired on 1 Jan 10, and was credited with 23 years, 2 months, and 1 day of active service.

On 8 Aug 16, the AFBCMR staff requested from counsel notarized affidavits to confirm marital status (see Exhibit C).  On 2 Sep 16, counsel returned the notarized affidavits from the former spouse, the current spouse and the member (see Exhibit D).  The applicant’s current spouse provided a signed, notarized affidavit dated 2 Sep 16, relinquishing any competing interest she may have in the SBP benefit in favor of her spouse’s former spouse. 

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

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the applicant’s request, indicating there is evidence of an injustice.

The service member cannot change his SBP coverage to former spouse and child because he did not elect spouse and child coverage at the time of retirement.

The service member and the applicant were married on 21 Jul 84, and prior to his 1 Jan 10 retirement elected spouse only SBP coverage based on full retired pay.  They were divorced on 15 Oct 14, and in the Order for Division of Military Retired pay, incorporated in the divorce decree, the service member was ordered to provide SBP coverage for the applicant.  There is no evidence either party submitted a valid election to change spouse to former spouse coverage during the required time following their divorce.  However, the Defense Eligibility Reporting System (DEERS) records reflect the service member married on 6 Jan 16.  His new spouse will not become a potential SBP beneficiary until the first anniversary of their marriage; therefore, there is no competing claimant.  The Defense Finance and Accounting Service-Cleveland (DFAS-CL) records continued to erroneously reflect the applicant’s name as the eligible spouse beneficiary.  The premiums for spouse only coverage continued to be deducted from the service member’s retired pay until Mar 16, when DFAS-CL received a copy of the  divorce decree and retroactively suspended spouse coverage.

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’s Counsel on 30 Jan 17, 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.  We also note that the current spouse has provided a signed, notarized affidavit relinquishing her entitlement to the SBP, eliminating the competing claimant and we are satisfied his current spouse is fully aware she is relinquishing her entitlement to the annuity.  Therefore, it is our opinion that the former spouse should receive the SBP annuity based on a full retired pay to comply with the divorce decree awarding the asset to her by the court.  .Accordingly, 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 SERVICE MEMBER be corrected to show that on 16 October 2014, a valid deemed election was received to establish former spouse coverage under the Survivor Benefit Plan (SBP), based on full retired pay, naming the APPLICANT as the eligible former spouse beneficiary.  Approval should be contingent upon recovery of any applicable premiums.

The following members of the Board considered AFBCMR Docket Number BC-2016-02242 in Executive Session on 29 Aug 17, 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-2016-02242 was considered:

	Exhibit A.  DD Form 149, dated 27 May 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 8 Aug 16, w/atchs.
	Exhibit D.  Affidavits, dated 6 Sep 16.  
	Exhibit E.  Memorandum, AFPC/DPFFF, dated 28 Nov 16.
	Exhibit F.  Letter, AFBCMR, dated 30 Jan 17.

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.