RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04372 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that he elected his former spouse as beneficiary of his Survivor Benefit Program (SBP) at the time of their divorce. ________________________________________________________________ APPLICANT CONTENDS THAT: He failed to elect his former spouse as the beneficiary of his SBP within one year of their divorce as the court had ordered. However, both he and his current spouse consent to his former spouse being the SBP beneficiary. In support of his request, the applicant provides copies of a statement from his former spouse’s legal counsel, two signed affidavits, as well as his divorce decree and settlement agreement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSIAR does not make a recommendation, as is the policy in cases with two potential beneficiaries. 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. One of the following actions must be exercised within the first year following the divorce: (1) the retiree may file an election change, or (2) 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 showing the member agreed, or that the court ordered the member to establish former spouse coverage. If neither the member nor the 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 (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. The applicant and the former spouse were married on 9 Jul 77, and he elected spouse only SBP coverage based on full retired pay prior to his 1 Sep 94 retirement. The parties divorced on 11 Feb 05. The settlement agreement, incorporated into their divorce decree, ordered that the former spouse remain the beneficiary of the SBP. There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. However, the applicant did not request the former spouse be removed as the SBP spouse beneficiary, and monthly premiums continued to be deducted from his retired pay. The applicant’s SBP information maintained in the DFAS-CL retired pay system continues to reflect the former spouse’s name and date of birth as the eligible spouse beneficiary. The applicant and the current spouse were married on 5 May 06. By law, the current spouse became the eligible spouse beneficiary on the first anniversary of their marriage. The applicant’s request contains a notarized affidavit from the current spouse, in which she consented to the designation of the applicant’s former spouse as the SBP former spouse beneficiary. DPSIAR cannot confirm if the former spouse is remarried. The complete HQ AFPC/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 22 Dec 12 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 injustice. The evidence of record reflects that as a part of the divorce settlement the court ordered the applicant to elect former spouse coverage under the Survivor Benefit Plan (SBP). While the court-ordered action was not completed within one year of the divorce as required by law, the clear intent of the divorce settlement agreement was for the former spouse to remain the SBP beneficiary and to receive any annuities upon the death of the applicant. Although we find no evidence of an error on the part of the Air Force, after careful consideration of the evidence of record and the applicant’s complete submission, we believe that his former spouse should be designated as the eligible beneficiary for his SBP annuity. In this respect, we note that both the applicant and the current spouse have signed notarized affidavits stating the former spouse should be the rightful SBP beneficiary. Therefore, we are satisfied that his current spouse is fully aware she is relinquishing her entitlement to the annuity. Therefore, we believe the applicant’s records should be corrected to the extent 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 11 February 2005, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former-spouse as the former-spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04372 in Executive Session on 15 May 12, 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-2011-04372 was considered: Exhibit A. DD Form 149, dated 14 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 14 Dec 11. Exhibit D. Letter, SAF/MRBR, dated 22 Dec 11.