RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-04407

MARK J. MILLER	COUNSEL:  NONE

	HEARING:  NO

APPLICANT REQUESTS THAT:

His record be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

He never received notice from the Defense Finance and Accounting Service (DFAS) stating he was required to change his election from spouse to former spouse within one year of his divorce decree.  He assumed DFAS would update all his records when he sent them his divorce decree.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force senior master sergeant.  According to the Certificate of Marriage provided by the applicant, he and his former spouse were married on 1 Dec 84.  On 3 Jun 03, prior to his 1 Nov 03 retirement, he elected, with spouse concurrence, not to participate in SBP, however he has continued to pay SBP premiums since that date.  The applicant and his former spouse divorced on 20 Dec 07, and the Separation Agreement stated, “husband and the wife agree that the wife shall be entitled to fifty percent of the husband’s military retired pay.  The wife shall be entitled to the SBP, and shall be entitled to military healthcare benefits and identification card.  The parties shall execute any documents necessary to effectuate this agreement and the implementation of an Order for the Division of Military Retired Pay.”  This court order was provided to DFAS within one year of the applicant’s divorce being final.  Both the applicant and his former spouse have re-married, as evidenced in the SBP Marital Status Affidavits, dated 24 and 26 Apr 17, respectively.  In addition, the applicant’s current spouse has relinquished any competing interest to SBP benefits in favor of the former spouse, as evidenced in the SBP – Release of Benefits (Current Spouse).  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF makes no recommendation because the case involves two competing interests.  The applicant agreed to maintain SBP for his former spouse; however, there is no record of either party submitted a valid election within the first year following their divorce, as the law requires.  DFAS records erroneously reflect the applicant’s former spouse as the eligible spouse beneficiary, and premiums continue to be deducted from the applicant’s retired pay.  Nevertheless, the applicant’s current spouse became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 29 Jun 17 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an error and injustice.  The Board believes a preponderance of the evidence substantiates that corrective action is warranted.  SBP premiums continue to be deducted from the applicant’s retired pay, the applicant’s divorce from his former spouse included a duty for him to make her his SBP beneficiary, and the applicant’s current spouse has relinquished any competing interest of SBP benefits in favor of the former spouse.  Therefore, the Board recommends correcting the applicant’s records 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 21 Dec 07, he elected former spouse coverage under the Survivor Benefit Plan based on full retired pay, naming his former spouse as the former spouse beneficiary.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04407 in Executive Session on 31 May18:

	Mr. Clifford D. Tompkins, Panel Chair
	Mr. Michael A. Cleveland, Panel Member
	Mr. Mark A. Correll, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 31 Oct 16.
Exhibit B:	Documentary evidence, including excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFFF, dated 5 Jun 17.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 29 Jun 17.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.