RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01582 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His former spouse be listed as his Survivor’s Benefit Plan (SBP) beneficiary. APPLICANT CONTENDS THAT: He was not aware that he had to file paperwork within one year of his divorce designating his ex-wife as his “former spouse” SBP beneficiary. He continued to pay the SBP monthly premiums with her listed as the beneficiary. His former spouse remarried on 24 Jul 04 at the age of 51 and he erroneously believed she was no longer entitled to SBP. The Board should consider it in the interest of justice to consider his untimely application as it would be a great injustice if his former spouse’s present spouse were to die or they were to divorce and she were not entitled to the SBP again. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Aug 91, the applicant retired in the grade of Senior Master Sergeant (SMSgt, E-8). The applicant and his former spouse were married on 21 Aug 71. They divorced on 23 Jul 98 per the divorce decree issued by the State of Minnesota. The court ordered the applicant to designate former spouse SBP coverage. The applicant’s former spouse remarried on 24 Jul 04, prior to her 55th birthday (date of birth 28 May 53), per the marriage certificate issued by Meeker County Treasurer’s Office, Litchfield, MN. According to a marriage certificate issued by the County of Stearns, State of Minnesota, the applicant and his current spouse married on 31 Dec 05. The applicant’s current spouse provided a signed, notarized affidavit dated 30 Apr 14 (Exhibit B), relinquishing any competing interest she may have in the SBP benefit in favor of her spouse’s former spouse. AIR FORCE EVALUATION: AFPC/DPFFF defers making a recommendation as there is another potential SBP beneficiary. DPFFF states that former spouse coverage is suspended if the former spouse remarries before age 55. Costs cease effective the first day of the month after the month of remarriage. However, eligibility and premiums are reinstated effective the first day of the month after the disqualifying marriage terminates. The applicant and his former spouse were married on 21 Aug 71 and he elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Aug 91 retirement. The youngest child lost eligibility due to age effective 1 Jul 97. The parties divorced on 23 Jul 98 and in the divorce decree, the applicant was ordered to continue to pay the SBP premiums and request former spouse coverage. However, there is no evidence either party submitted a valid former spouse election within the one-year period following their divorce as the law requires. The applicant’s former spouse remarried on 24 Jul 04, prior to her 55th birthday. On 31 Dec 05, the applicant married his current spouse. In Apr 08, after receiving a copy of his marriage certificate, the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) updated his records to reflect his current spouse and date of birth (9 Aug 46) as the eligible spouse beneficiary. A complete copy of the DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy the Air Force evaluation was forwarded to the applicant on 11 Jul 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. 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 error or injustice. After thoroughly reviewing the evidence of record, we believe that the applicant's records should be corrected to reflect that he elected former spouse coverage under the SBP within the required timeframe. We note that the former member continued to pay the SBP premiums for years after his divorce in 1998 which supports the belief that he did not believe his former spouse was eligible for the SBP due to her marriage before age 55. We also note that the current spouse has provided a signed, notarized affidavit relinquishing her entitlement to the SBP and we are satisfied his current spouse is fully aware she is relinquishing her entitlement to the annuity. Therefore, it is our opinion that the former spouse should receive the SBP annuity based on a previous reduced level of retired pay to comply with the divorce decree awarding the asset to her by the court. Accordingly, 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 the APPLICANT be corrected to show that on 22 Jul 99, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on a previous reduced level of retired pay, naming his former spouse as the beneficiary. The following members of the Board considered AFBCMR Docket Number BC-2014-01582 in Executive Session on 28 Jan and 7 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Apr 14, w/atchs. Exhibit B. Affidavits, dated 30 Apr 14. Exhibit C. Memorandum, AFPC/DPFFF, dated 10 Jun 14. Exhibit D. Letter, SAF/MRBR, dated 11 Jul 14.