RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05144 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: Her deceased former spouse’s record be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: Upon her divorce 19 years ago, her former spouse completed and submitted the DD Form 2656, Election Change Certificate, to update the SBP. She is now being penalized because of a clerical error. Why would her former spouse have paid into the SBP for 19 years if he were not sure he completed the paperwork for the change in their marital status? The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The former member retired from the Air Force effective 1 April 1991 in the grade of master sergeant. The former member passed away on 9 September 2014. The applicant submitted a notarized marital status affidavit, dated 15 January 2015, attesting that she and her former spouse (decedent) were married on 12 February 1971 and on 21 November 1995, they divorced. She also indicated that neither she nor her former spouse were married. The former spouse’s death certificate confirmed there was no surviving spouse. According to the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), the applicant is designated as the sole AOP beneficiary. Nonetheless, as a precaution, the applicant’s two children also submitted notarized affidavits relinquishing any competing interests in the arrears of payment (AOP) in favor of the applicant. The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit B. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. The applicant and the decedent were married on 12 February 1971. The decedent elected spouse and child coverage based on full retired pay prior to his 1 April 1991 retirement. The parties divorced on 21 November 1995. In the Marital Settlement Agreement, incorporated in the divorce decree, the decedent agreed to maintain SBP coverage for the applicant; however, there is no evidence either party submitted a valid election to change spouse to former spouse coverage during the required time following their divorce. The youngest child lost eligibility due to age September 1999. DFAS-CL records continued to reflect the applicant’s name as the eligible spouse beneficiary and SBP premiums continued to be deducted from the decedent's retired pay until his 9 September 2014 death. There is no evidence either party remarried, and accordingly, there is no competing claimant. A person's eligibility as an SBP spouse beneficiary terminates upon divorce. The law; however, 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 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. 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. To deny the applicant's request would be to deny an asset awarded to her by the court. Approval, however, should be contingent upon recovery of any applicable premiums. A complete copy of the AFPC/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 1 July 2015 for review and comment within 30 days (Exhibit C). 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and conclude the applicant has been the victim of an error or injustice. Based on our review of the evidence presented, it is clear the deceased member intended his former spouse to be the beneficiary of his SBP. We have further confirmed that there are no competing interests that would be harmed by the requested correction. In this respect, we note that the member’s death certificate confirms that the member died without a spouse and the applicant’s affidavit swears the same. Additionally, because the applicant is the arrears of pay (AOP) beneficiary, any refunded premiums due would have been paid to the applicant, not a third party. Therefore, the recovery of any retroactive costs as a result of the recommended correction of records would not be at the expense of another potential beneficiary (competing interest). We also agree that approval should be contingent upon collection of any unpaid or refunded premiums. Therefore, in the absence of any evidence there is a competing claimant, we recommend the deceased member’s records 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 issues 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 the DECEASED FORMER MEMBER be corrected to show that on 22 November 1995, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming the APPLICANT as the beneficiary, contingent upon collection of any applicable premiums. The following members of the Board considered AFBCMR Docket Number BC-2014-05144 in Executive Session on 2 March 2016 under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-05144 was considered: Exhibit A. DD Form 149, dated 19 Dec 14, w/atchs. Exhibit B. Memorandum, AFPC/DPFFF, dated 5 Mar 15. Exhibit C. Letter, SAF/MRBR, dated 1 Jul 15. 1 2