RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00712 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased husband’s records be corrected to reflect that he elected “Former Spouse” coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She should be entitled to receive the SBP annuity paid for by the decedent, because her attorney failed to properly represent her. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the divorce decree provided by the applicant, on 7 Nov 93, she and the decedent were married and on 25 May 10, they were divorced. According to the Certificate of Death provided by the applicant, on 14 Oct 13, her former husband passed away. The applicant submitted a notarized Marital Status Affidavit, dated 15 May 14, indicating her marital status as “not married” and the decedent as “did not remarry.” ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, indicating there is no record of an Air Force error. However, despite the decedent’s failure to submit a valid former spouse election change, he did not terminate the applicant’s coverage following their divorce. This is indicative of his intent for her to remain eligible for his SBP. To deny the applicant's request would be to deny an asset awarded to her by the court. A person's eligibility as an SBP spouse beneficiary terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage. Both must be exercised 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 one­year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member's death. The court order awarded the applicant the SBP and DFAS-CL records continued to reflect the applicant’s name as the eligible spouse beneficiary and SBP premiums continued to be deducted from the member's retired pay until his 14 Oct 13 death. The complete DPFFF 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 8 May 14 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. Having carefully reviewed this application, we agree with the recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Accordingly, in the interest of justice, 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 DECEDENT be corrected to show that on 26 May 10, he elected former spouse coverage under the Survivor Benefit Plan, based on full retired pay naming the APPLICANT as the beneficiary, contingent upon recovery of any applicable premiums. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2014-00712 in Executive Session on 17 Feb 15, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Feb 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 24 Apr 14. Exhibit C. Letter, SAF/MRBR, dated 8 May 14.