RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03916 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) and that his dependent son was incapable of self- support prior to age 18. _________________________________________________________________ APPLICANT CONTENDS THAT: He was not aware that he had to inform the government within 12 months of his divorce that he wanted to establish former spouse coverage on his SBP. He understood it to be an automatic continuation of coverage. Additionally, his son was diagnosed with his disability after his retirement from active duty. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is included at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends approval, indicating that while there is no evidence of Air Force error in this case it would be appropriate, in the interest of justice, for the AFBCMR to grant relief and correct the applicant’s record to reflect he elected former spouse and child coverage base on full retired pay under the SBP, naming his former spouse as the eligible beneficiary. Additionally, the applicant’s record should be further corrected to reflect his dependent son was incapable of self-support before attaining the age 18, contingent upon documentation that states the dependent son’s disability is permanent and renders him incapable of self-support and recovery of all applicable retroactive costs.Otherwise, the dependent son’s eligibility asacontingent beneficiary will cease upon his 22ndbirthday, unless proper documentation is provided indicating the disabilitywas diagnosed before he attained the age of 18. According to Defense Enrollment Eligibility Reporting System (DEERS) records, the applicant and his former spouse were married on 17 Jun 92. Their dependent son turned 18 years old on 24 Aug 12. The applicant selected spouse and child SBP coverage based on full retired pay prior to his 1 Sep 00 retirement, but at the time, hedid not indicate his son was incapable of self-support. The applicant and his former spouse divorced on 30 May 07 and the divorce decree did not address the SBP. SBP premiums continue tobe deducted from the applicant’s retired pay. Despite the applicant’s failure to submit a valid former spouse election change, he did not request SBP coverage to terminate following their divorce, indicative of his intent to continue SBP coverage for his former spouse. A complete copy of the AFPC/DPSIARevaluation is at ExhibitC. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response tothe Air Force evaluation forwarded to the applicant on 9Oct12, he provided a certified letter from his son’s physician (translated from German to English)indicatingthathe provided treatment to the applicant’s son from 2007-2008; February 2011 to November 2011; and from July 2012 to present. He notes that the patient has been diagnosed with a perception disorder, AttentionDeficit Hyperactivity Disorder (ADHD), and anautism spectrum disorder. The physician expects that he will either not succeed or, if he does succeed, he will still require additional assistance due to his mental disability. THE BOARD CONCLUDES THAT: 1.The applicant has exhausted all remedies provided by existinglaw or regulations. 2.The application 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. The applicant contends he was not aware that he had to inform the government within 12 months of his divorce that he wanted to maintain his formerspouse as an SBP beneficiary. While there is no evidence the applicant or his former spouse made the required election forformer spouse coverage, we believe a preponderance of the evidence supports corrective action. In this respect, we note 2 the applicant elected spouse and child SBP coverage based on full retired pay prior to his 1 Sep 00 retirement and believe his action to allow SBP premiums to be deducted from his retired pay for years following his divorce without requesting that said coverage be terminated is indicative of his intent for his former spouse to retain her eligibility as his SBP beneficiary. As for his request related to his dependent son, we also believe it would be in the interest of justice to correct the record to reflect his son was incapable of self-support and therefore eligible for SBP coverage beyond the age of 18. In this respect, we note that in response to the Air Force evaluation, the applicant has provided documentation from his son’s attending physician attesting to the fact that he was diagnosed with disabilities prior to his 18th birthday that render him incapable of self-support. Therefore, we recommend his records be corrected as 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 he elected former spouse and child coverage based on full retired pay under the Survivor Benefit Plan (SBP) and that his dependent son was determined to be incapable of self-support prior to attaining the age of 18. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03916 in Executive Session on 7 May 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 28 Sep 12. Exhibit D. Letter, SAF/MRBR, dated 9 Oct 12. Exhibit E. Letter, Child Physician, dated 29 Nov 12.