RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01209 XXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: The Survivor Benefit Plan (SBP) coverage for his former spouse be established. APPLICANT CONTENDS THAT: The court system, lawyers and Defense Finance and Accounting Service (DFAS) could not agree on the documentation he submitted to establish former spouse coverage for his ex-wife. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to Air Force Board for Correction of Military Records (AFBCMR) Survivor Benefit Program – Marital Status Affidavit, submitted by the applicant, he and his former spouse married on 25 Jul 71. According to AFBCMR Survivor Benefit Program – Marital Status Affidavit, submitted by the applicant, he retired from military service on 1 Jul 96. According to the DFAS Advisory, the applicant and his former spouse divorced on 14 Jun 12. The separation agreement dated 13 Mar 12, incorporated into their divorce, awarded former spouse SBP. According to DD Form 2656-6, Survivor Benefit Plan Election Change Certificate, dated 25 Feb 15, Section III – Conditions that Trigger Eligibility to Change Coverage, the applicant marked “divorce” and in Section IV – Requested Change to Coverage, he marked “resume existing coverage.” The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force office of primary responsibility (OPR) at Exhibit C. AIR FORCE EVALUATION: DFAS-JBJE/CL recommends disapproval indicating according to law, they cannot provide former spouse SBP coverage without an election from the member or a deemed election from the former spouse or her attorney within one year from the date of the Order awarding SBP coverage. They did not receive a deemed election from his former spouse or a voluntary election from the applicant within the one year period; therefore his former spouse is not an eligible beneficiary. The DD Form 2656-1, SBP Election Statement for Former Spouse Coverage, is witnessed on 3 Nov 14 and 17 Dec 14. DFAS received the form after this date, which is beyond the one year period following their divorce. The SBP, as outlined in Title 10, United States Code, Sections 1447-1455, was enacted on 21 Sep 72, to allow retired members of the Uniformed Services an opportunity to provide a portion of their retirement pay to their surviving beneficiaries. Public Law 98-94, dated 24 Sep 83, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage upon divorce. Furthermore, Public Law 98-525, enacted 19 Oct 84, amended the SBP by giving the former spouse of a retiree an option to request that a former spouse election be deemed to have been made by the retiree. Former spouse coverage may be continued if both the retiree and the former spouse sign an agreement to continue the SBP along with a qualified court order that incorporates, ratifies, or approves the agreement. If the retiree fails to elect coverage, the former spouse may request a deemed election for former spouse coverage if the conditions mentioned above are met. The request for a deemed former spouse election must be received within one year from the date of divorce. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 5 Jan 16 for review and comment within 30 days. The applicant responded indicating he thinks there is a misunderstanding because he is not trying to cover a current spouse, but is trying to cover a former spouse after divorce. While he and his former spouse were not informed of the one year time limit to apply to have former spouse coverage, they began the paperwork right away but had numerous issues with DFAS resulting in numerous paperwork rejections that ultimately led to denial of coverage due to the time limit breach. Had the process not taken as long as it did with DFAS he would have met the time restraints. He provides copies of correspondence documenting his and his attorney’s attempts to obtain former spouse coverage. 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 injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. While we note the comments of DFAS-JBJE/CL indicating that relief should be denied because the applicant failed to submit a deemed election from the former spouse or a voluntary election from the applicant within one year, we believe a preponderance of the evidence substantiates that corrective action is warranted. In this respect, we note that DFAS-JBJE/CL indicated the applicant submitted the DD Form 2656- 1 witnessed on 3 Nov 14 and again on 17 Dec 14 indicating they did not receive the form during the one-year period following the divorce on 14 Jun 12. However, the applicant provides substantial evidence documenting his attempts to provide the requested documentation prior to and following the required one- year time frame following the divorce. Therefore, 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 he elected former spouse coverage under the Survivor Benefit Program based on full retired pay effective June 15, 2012, naming Donna A. Giroux as the eligible beneficiary, contingent upon recoupment of any applicable premiums. The following members of the Board considered AFBCMR Docket Number BC-2015-01209 in Executive Session on 2 Mar 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01209 was considered: Exhibit A. DD Form 149, dated 19 Mar 15, w/atchs. Exhibit B. Letter, APPLICANT, Marital Status Affidavit, dated 30 Oct 15, w/atchs. Exhibit C. Marital Status Affidavit Response, APPLICANT, dated 13 Nov 15. Exhibit D. Memorandum, DFAS-JBJE/CL, dated 15 Oct 15. Exhibit E. Letter, APPLICANT REBUTTAL, dated 1 Feb 16.