RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01771 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His record be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: He did not make an election at the time he remarried on 13 September 2006. In support of his request, the applicant submits a copy of his divorce decree and marriage license. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and his former spouse were married on 5 September 1959 and he elected spouse and child SBP coverage based on full retired pay prior to his 1 March 1983 retirement. They divorced on 8 May 2006. The applicant married his second spouse on 13 September 2006. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial. DPSIAR states the applicant married his first spouse in 1959 and his youngest child lost eligibility in July 1998 due to age. Their divorce decree ordered that the former spouse be designated as the former spouse beneficiary to the SBP; however, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. The applicant married his second spouse on 13 September 2006, but did not notify the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) of the change in his marital status or request that spouse coverage be established on her behalf. DFAS-CL’s record erroneously reflect his former spouse’s name and date of birth (28 May 1934) as the eligible spouse beneficiary and premiums continue to be deducted from the applicant’s retired pay. The DPSIAR complete evaluation, with attachment, is at Exhibit B. On 25 January 2012, the applicant was provided advisories (Exhibit C) prepared by the SAF/MRB Legal Advisor and SAF/GCM on similar cases considered by the Board. The Board has been advised that it should not consider cases involving disputed claims unless a court of competent jurisdiction has ruled in the case or pushes the AFBCMR to make a determination in the case. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s current spouse states that the applicant’s former spouse is entitled to any SBP coverage and provides a notarized statement. The applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ 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 an injustice. We note the applicant’s current spouse has provided a notarized statement relinquishing her entitlement to the SBP and we are satisfied that she understands and accepts her husband’s decision to cover his former spouse. In view of the foregoing, 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 APPLICANT, be corrected to show that on 9 May 2006, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming XXXXX as the former spouse beneficiary. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-01771 in Executive Session on 6 March 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01771 was considered: Exhibit A. DD Form 149, dated 12 May 2011, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 8 June 2011, w/atchs. Exhibit C. Letters, SAF/GCM, dated 18 October 2006 and SAF/MRB dated 27 January 2009. Exhibit D. Letter, AFBCMR, dated 25 January 2012. Exhibit E. Letter, Current Spouse, not dated, w/atch.