RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03829 (MEMBER) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former husband’s records be corrected to reflect that he elected “Former Spouse” coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She is entitled to the SBP as directed in a court order and she was unaware additional information was required. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the divorce decree provided by the applicant, on 27 Jun 76, she and the former service member married and on 12 Jul 12, they divorced. On 15 Oct 14, the AFBCMR SBP Marital Status Affidavit was forwarded to the applicant (Exhibit B). The applicant provided a notarized affidavit, dated 24 Oct 14, indicating she and her former spouse’s marital status is “not married” (Exhibit C). On 15 Oct 14, the AFBCMR SBP Martial Status Affidavits were forwarded to the member. As of this date, no response has been received by this office (Exhibit D). The remaining relevant facts pertaining to this application is described in the memoranda prepared by the Air Force Office of Primary Responsibility (OPR), which is included at Exhibit E. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, indicating that while there is no evidence of an Air Force error, absent evidence of a competing claimant, it would be appropriate to enforce the court-ordered agreement to continue SBP coverage on the applicant's behalf. 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. Even though a member fails to notify 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 former service member's marital status prior to his retirement date is not apparent from the evidence of record; however, he elected child only SBP coverage based on full retired pay prior to his 1 Sep 74 retirement. The former service member and the applicant married on 27 Jun 76. The youngest child lost eligibility in Jul 86 due to age. On 1 Oct 92, he elected spouse only coverage based on full retired pay during the 1 Apr 92 - 31 Mar 93 open enrollment authorized by Public Law (PL) 101-189. Spouse SBP premiums were deducted from his retired pay until 1 Dec 10, when the requirement for the paid-up SBP provision was met. On 12 Jul 12, the parties divorced, and in the Stipulated Judgment, incorporated in the divorce decree, the former service member agreed to maintain the applicant as the beneficiary of the SBP. There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. DFAS-CL records continued to erroneously reflect the applicant's name as the eligible spouse beneficiary. On 31 Dec 12, DFAS-CL received a copy of the divorce decree and retroactively suspended the spouse coverage. It is not apparent that either party has remarried; however, absent evidence of a competing claimant, the member's record should be corrected to show that the applicant submitted a valid deemed election for former spouse coverage based on full retired pay, effective 13 Jul 12. Correction should be contingent upon recovery of appropriate retroactive costs (unpaid premiums). A complete copy of the AFPC/DPFFF evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates her request to exercise her right to establish former spouse coverage under the SBP which was court ordered in their final divorce decree. The applicant’s complete response is at Exhibit G. 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. After thoroughly reviewing the evidence of record, we believe the former member’s records should be corrected to reflect that the applicant submitted a valid request for former spouse coverage to be deemed on her behalf under the Survivor Benefit Plan (SBP) based on full retired pay. In this respect, we note the comments of AFPC/DPFFF indicating that absent evidence of a competing claimant, it would be appropriate to enforce the court-ordered agreement to continue SBP coverage on the applicant's behalf. Based on the notarized affidavit provided by the applicant dated 24 Oct 14, neither party is currently married, as such, in our view, the possibility of a competing claimant is eliminated. Therefore, it is our opinion that to deny the applicant's request would be denying the former spouse an asset awarded to her by the court as a result of the divorce. As such, we believe the former spouse should receive the SBP annuity to comply with the divorce decree awarding the asset to her by the court contingent upon recovery of any SBP premiums that will be due as a result of the recommended correction. In view of the foregoing, we recommend the former member’s records 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 FORMER MILITARY MEMBER be corrected to show that on 13 July 2012, the applicant submitted a valid request for former spouse coverage to be deemed on her behalf under the Survivor Benefit Plan (SBP) based on full retired pay. Approval should be contingent upon recovery of appropriate retroactive costs. The following members of the Board considered AFBCMR Docket Number BC-2014-03829 in Executive Session on 18 Nov 15 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 16 Sep 14, w/atchs. Exhibit B. Letter, SAF/MRBR, dated 15 Oct 14. Exhibit C. Affidavit, Applicant, dated 24 Oct 14, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 15 Oct 14. Exhibit E. Letter, AFPC/DPFFF, dated 12 Dec 14. Exhibit F. Letter, SAF/MRBR, dated 12 Jan 15. Exhibit G. Letter, Applicant, dated 25 Jul 15.