RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00136 INDEX CODE: 137.04 COUNSEL: XXX HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: The former member’s records be corrected to show he made an election for former-spouse coverage based on a reduced level of retired pay under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: A copy of the divorce decree was mailed to Defense Finance and Accounting Service (DFAS) in 1990. The divorce decree awards her SBP coverage. In support of her request, the applicant provides a copy of her divorce decree and the former member’s death certificate. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The former member and the applicant were married on 6 February 1953 and divorced on 3 October 1990. The divorce decree ordered the former member to continue SBP on the applicant’s behalf. There is no evidence that either party submitted a valid election change during the first year following the date the divorce was finalized. The former member remarried on 18 December 1995 and divorced on 24 October 2000. However, he did not notify DFAS of the change of his marital status or submit a valid election to change spouse to former spouse coverage during the required timeframe following the divorce. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval of the applicant’s request. DPSIAR states the former member’s record should be corrected to reflect that on 4 October 1990, he submitted a valid election for former spouse coverage based on the previous reduced level of retired pay, naming the applicant as the eligible beneficiary. Approval should be contingent upon recovery of any applicable premiums. The complete DPSIAR evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 5 March 2010, for review and comment within 30 days. As of this date, no response has been received by this office. (Exhibit D). _________________________________________________________________ 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 thoroughly reviewing the circumstances of this case, we believe the applicant should be awarded benefits under the Survivor Benefit Program. In that regard, we note the controlling divorce decree ordered that certain survivor benefits remain vested in the applicant. Therefore, we recommend the deceased member’s records be corrected as 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 4 October 1990, he elected to change his SBP election from "spouse" coverage to "former spouse coverage" based on the previous reduced level of retired pay, naming XXX as the eligible beneficiary. _______________________________________________________________ The following members of the Board considered Docket Number BC- 2010-00136 in Executive Session on 20 April 2010, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Jan 10, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 19 Feb 10 Exhibit C. Letter, SAF/MRBR, dated 5 Mar 10. Panel Chair