RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03256 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: Their divorce decree ordered her former spouse to maintain SBP coverage for her. She submitted all the necessary paperwork to the Air Force to establish former spouse coverage under the SBP. She assumed her former husband had taken all the necessary actions to comply with their divorce decree. In support of her request, the applicant provided a copy of their divorce decree, a United States Postal Service certified return receipt, dated 14 Jan 91, an AF Form 1581, Survivor Benefit Plan, Election Statement for Former Spouse Coverage, dated 28 Dec 90, a DD Form 1882, Survivor Benefit Plan Election Change (Former Spouse), dated 29 Apr 90, a letter from the Defense Finance and Accounting Service (DFAS) dated 24 Sep 07, and a personal statement with attachments from her former spouse. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The former member and the applicant were married on 28 Oct 72. He elected spouse only SBP coverage based on full retired pay prior to his 1 Feb 88 retirement. The parties divorced on 4 Aug 89 and the divorce decree required SBP coverage be continued. However, the finance center has no evidence that either party submitted a valid election to change coverage from spouse to former spouse coverage during the first year following their divorce. SBP premiums continued to be deducted from the former member’s retired pay until Jun 91 when the finance center received notification of the divorce, suspended the SBP coverage retroactive to the date of the divorce, and refunded overpaid premiums. Defense Enrollment Eligibility Reporting System (DEERS) records show he remarried on 10 Feb 96, but he did not request that DFAS-CL establish SBP coverage on his new spouse’s behalf. His wife died on 6 Nov 07. In a letter dated, 22 Sep 08, the former member states that he filled out both forms and sent one of them to his former spouse to be signed. He was aware there was a deadline to return the forms, and ten days before the deadline, he called his former spouse and asked her if she had sent the forms back to him. She stated she wanted her lawyer to look over the forms. The deadline came and went without the forms being returned so he could send them in. After all these years some Air Force correspondence reminded his former spouse that the former spouse benefit plan was not in effect. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSIAR reviewed this application and states there is no evidence of Air Force error and absent evidence of a competing claimant, it would be appropriate to enforce the parties’ court- ordered agreement to continue SBP coverage on the applicant’s behalf. DPSIAR recommends the record be corrected to show that the applicant submitted a valid request that SBP coverage be deemed on her behalf. Correction should be contingent upon recovery of appropriate retroactive costs. 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. Both must be exercised within the first year following divorce: the retiree may file an election change, or 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 that the member agreed, or that 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 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 complete DPSIAR evaluation is at Exhibit C. _________________________________________________________________ FORMER MEMBER'S REVIEW OF AIR FORCE EVALUATION: On 21 Nov 08, a copy of the Air Force evaluation was forwarded to the applicant and the former member for review and comment within 30 days. The former member claims that his former spouse assumed he had taken all the necessary actions to comply with their divorce. This is an incorrect statement. On 29 Apr 90, the Air Force Accounting and Finance Center, Retired Pay Entitlements Division (AFAFC/RPT) sent him two forms, a DD Form 1882, and another form which he sent to his former spouse instructing her to sign the form and return it so he could send both forms back to AFAFC/RPT. On 29 Apr 90, he did exactly what he was supposed to do. It was not his decision to elect spouse only SBP coverage. His former spouse was allowed to make that decision per Air Force regulations. Their divorce decree did require that SBP coverage be continued. He tried to do that in 1990; however, his former spouse chose to seek legal advice on a simple Air Force form rather than just signing it and returning it to him. He did all he could possibly do. The recovery of retroactive premiums would cause a hardship; where as financially it would not mean as much to his former spouse except to increase her already high income. He requests the case be closed and his former spouse be notified why no action was taken. The former member’s response, with attachments, is at Exhibit D. _________________________________________________________________ SAF/MRB LEGAL ADVISOR EVALUATION: The SAF/MRB Legal Advisor recommends a decision on the case be based upon whether the Board believes the correction is necessary to correct an error or injustice. The HQ AFPC/DPSIAR advisory, dated 29 Oct 08, recommends granting the application based upon the divorce decree and the fact that there is not an eligible competing spouse. When the former member received this advisory, he objected to this recommendation based upon the fact that his former spouse was partly responsible for the failure to make the deemed election by her failure to return a required form (DD Form 1882) in a timely manner. He also makes the point that the requirement to repay premiums triggered by this correction would be a financial hardship for him. The one-year rule was passed in large measure to avoid DFAS from being in the middle of arguments and factual disputes just as this. Unfortunately, the impact of that rule in many cases is to place these disputes in the AFBCMR forum (a federal court has ruled the AFBCMR cannot just refuse to consider the case). In this case, the applicant had court-ordered coverage for her and it seems fair that she should get it, but the member raises valid points as to why you should not grant the application. A copy of the SAF/MRB evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF SAF/MRB LEGAL ADVISOR EVALUATION Applicant states she sent all necessary witnessed and signed documents with a copy of their divorce decree in a timely manner to AFAFC/RPT back in 1989, in 1990, and again in 1991. She is recommending the decision be based on whether or not there has been an injustice. Her former spouse retired with 25 years in the Air Force as a SMSgt, and also retired from the Post Office. They are both proud parents of three educated children one serving in the Air Force. Her former spouse states to repay the premiums would be a financial hardship for him. It was a financial hardship for her back then with three children. This was a voluntary written agreement between her and her former husband, ratified by a court order. All legal documents to the best of her knowledge had been sent. The applicant’s complete response, with attachments, is at Exhibit G. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the available evidence of record, it is our opinion the requested relief should be granted. In this respect, we agree with the Air Force office of primary responsibility that it would be appropriate to enforce the parties’ court-ordered agreement to continue the SBP coverage on the applicant’s behalf. The divorce decree clearly directed that the applicant receive the SBP and it appears attempts were made to comply with the divorce decree within the one-year time frame required by law. Therefore, we believe any doubt should be resolved in the applicant’s favor. In view of the above, we recommend the member’s records be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 3 August 1990, a valid deemed election was received to establish former spouse coverage under the Survivor Benefit Plan based on full retired pay, naming xxxxxxxxx, as the former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-03256 in Executive Session on 19 February 2009, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Sep 08, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 29 Oct 08. Exhibit C. Letter, SAF/MRBR, dated 21 Nov 08. Exhibit D. Letter, Former Member, dated 3 Dec 08, w/atchs. Exhibit E. Letter, SAF/MRB Legal Advisor, dated 30 Dec 08. Exhibit F. Letter, AFBCMR, dated 8 Jan 09. Exhibit G. Letter, Applicant, dated 25 Jan 09, w/atchs.