RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00221 INDEX CODE: 137.04 XXXXXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to show that he was not married at the time he retired from the Air Force; and, to allow him to elect spouse coverage for his current wife under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: He submitted paperwork twice to add his wife to the SBP; however, his requests were denied because there was no record of his divorce documents from his previous marriage. In support of his appeal, the applicant provides copies of his divorce documents and his marriage certificate. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to the Military Personnel Data System, the applicant served in the Regular Air Force with a Pay Date of 6 February 1980. He was promoted to the grade of technical sergeant (E-6) effective and with a date of rank of 25 September 1998. The applicant was honorably released from active duty effective 31 March 2000 and retired on 1 April 2000. The remaining relevant facts are contained in the letter prepared by the Air Force office of primary responsibility (OPR) at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends correcting the applicant’s record to show he had no eligible spouse beneficiary and declined SBP coverage effective 1 April 2000. In addition, his record be further corrected to show that he submitted a valid election for spouse only coverage based on full retired pay on 14 April 2001 naming his current spouse as the eligible spouse beneficiary. Approval should be contingent upon recoupment of all applicable premiums. DPSIAR states the Defense Finance and Accounting Service (DFAS) did not receive a valid SBP election from the applicant to decline coverage prior to his 1 April 2000 retirement; therefore, they established full spouse and child coverage to comply with the law. However, the Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant was not married when he retired, but had eligible children. The applicant married his current wife on 15 April 2000. Monthly premiums were deducted from his retired pay since his retirement date until August 2009, when the finance center processed his request to add his current wife to SBP and when he provided his 13 January 1989 divorce decree. Overpaid premiums, subject to the six-year statute of limitations, were refunded. DPSIAR indicates that they can neither confirm nor deny the applicant’s claim that he submitted paperwork twice to add his current wife to the SBP because the DFAS records contain no evidence of his alleged notices. However, since SBP spouse premiums were deducted from his retired pay for over nine years, to include the years he was married to his current wife, it is reasonable to presume he intended to provide SBP protection for his current wife. The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 12 March 2010 for review and response within 30 days (Exhibit C). As of this date, this office has received no response. _________________________________________________________________ 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 evidence in this case, we are persuaded it was the applicant’s intent to provide his current spouse with an SBP annuity. In this respect, we agree with the Air Force office of primary responsibility in that since premiums were deducted from the applicant’s retired pay for over nine years to include the years he was married to his current spouse; and, in an attempt to preclude a possible injustice, we believe the requested relief should be granted. Accordingly, 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: a. He declined SBP coverage effective 1 April 2000. b. On 14 April 2001, he elected spouse only SBP coverage based on full retired pay naming XXXXXXXXXXXXXXXX as the eligible spouse beneficiary. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 15 September 2010, under the provisions of AFI 36-2603: All members voted to correct the record as recommended. The following documentary evidence for AFBCMR Docket Number BC-2010- 00221 was considered: Exhibit A. DD Form 149, dated 9 Nov 09, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 22 Feb 10. Exhibit C. Letter, SAF/MRBR, dated 12 Mar 10.