RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00167 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated as the former spouse beneficiary under the Survivor’s Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She and her attorney believed she would receive SBP benefits upon the death of her former spouse. The Retiree Account Statement (RAS) lists her as the SBP beneficiary. In support of her request, the applicant provides copies of a letter from the Defense Finance and Accounting Service (DFAS), order of court, death certificate and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the Defense Enrollment Eligibility Reporting System (DEERS) database it reflects that the parties married 23 May 87. According to the Judgment of Absolute Divorce, filed on 28 Jul 11, the parties were divorced on 27 Jul 11. According to the death certificate provided by the applicant with a file date of 9 Sep 13, the decedent died on 2 Sep 13 and did not have a surviving spouse. According to an e-mail from DFAS-CL dated 5 Jan 15, the SBP premiums for 1 Jul 11 through 31 Aug 13 were refunded along with the Arrears of Pay (AOP) to the decedent’s mother who was listed as the beneficiary. ___________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. As background, 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 taken within the first year following 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 the member agreed, or the court ordered the member to establish former spouse coverage. If neither the member nor the former spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. The parties divorced on 27 Jul 11, and the divorce decree ordered the service member to designate the applicant as the SBP beneficiary. The youngest child lost eligibility due to age effective 1 Sep 11. There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the one year following their divorce. Despite the decedent’s failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce, indicative of his intent for her to remain eligible for his SBP. DFAS-CL records continued to reflect the applicant’s name and DOB as the eligible spouse beneficiary and premiums continued to be deducted from the service member’s retired pay until his 2 Sep 13 death. There is no evidence either party remarried, and accordingly, there is no competing claimant. There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on 28 Jul 11, he elected to change SBP spouse to former spouse coverage based on full retired pay naming the applicant as the eligible beneficiary. Approval should be contingent upon recovery of any applicable premiums. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 Mar 14, a copy of the Air Force evaluation was provided to the applicant for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting relief. We note the Office of Primary Responsibility (OPR) states that absent a competing claimant, they recommend granting the requested relief. As such, we find the death certificate provided by the applicant sufficient to conclude that the decedent was not married at the time of his death. Therefore, we agree with the recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. Accordingly, we recommend the applicant’s record be corrected as indicated below. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to DECEDENT be corrected to show that on 28 Jul 11, he elected to change his SBP spouse coverage to former spouse coverage based on full retired pay naming the APPLICANT as the former spouse beneficiary, contingent upon recoupment of any applicable premiums. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2014-00167 in Executive Session on 22 Nov 14, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00167 was considered: Exhibit A. DD Form 149, dated 8 Jan 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 12 Mar 14. Exhibit C. Letter, SAF/MRBR, dated 21 Mar 14.