RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01120

XXXXXX	COUNSEL: NONE
	(DECEASED)

XXXXXX	HEARING: YES
	(APPLICANT)

APPLICANT REQUESTS THAT:

Her former spouse’s Survivor Benefit Plan election be changed from “spouse” to “former spouse” to designate her as the beneficiary of her former spouse’s Survivor Benefit Plan (SBP) annuity.  
 
APPLICANT CONTENDS THAT:

She makes no contentions as to why she believes the record is in error or unjust.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The decedent is a former Air Force master sergeant who retired on 28 Feb 06.

According to DD Form 2656, Data for Payment of Retired Personnel, dated 12 Dec 05, the decedent elected spouse and child coverage based on full retired pay.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF makes no recommendation because there are competing interests. A person’s eligibility to receive spousal SBP annuity terminates upon divorce.  The law provides that within the first year following divorce the retiree may file an election change, or the former spouse may request the retiree be deemed to have made the election change on her behalf.  The former spouse must provide legal documentation that the service member agreed or the court ordered the member to establish former spouse coverage.  If the member fails to notify the Defense Finance and Accounting Service–Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums, the former spouse is not eligible for SBP annuity payments upon the member’s death.

In this case, prior to his retirement, the decedent elected spouse and child SBP coverage based on full retired pay.  The parties divorced on 2 Mar 12.  In the Separation Agreement, incorporated in the Final Decree of Divorce, the decedent agreed to “continue payment into the SBP initiated while the couple were still married.”  There is no evidence either party submitted a valid election change during the authorized period.  

Although the applicant did not provide a death certificate, the Defense Enrollment Eligibility Reporting System records show the decedent died on 3 Dec 16.  SBP spouse and child premiums were deducted from the decedent’s retired pay until his death.  The youngest child became the eligible beneficiary, and DFAS-CL records reflect he is receiving an SBP annuity of approximately $1,641.00.  DFAS records do not reflect the applicant as the Arrears of Pay (AOP) beneficiary.  The complete advisory is at Exhibit C.
 
APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 8 May 18 for comment (Exhibit D), and the applicant replied on 15 May 18.  In her response, the applicant contended that she believed the decedent had complied with the court order to maintain her eligibility for survivor’s benefits.  After contacting DFAS-CL, she was informed that he failed to change his marital status.  While he did not notify DFAS-CL of the change in their marital status within the one-year period as required, he continued to pay the SBP premiums until his death.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3. After thoroughly reviewing all Exhibits, the Board concludes that the applicant is not the victim of an error or injustice.  The decedent service member’s child is currently drawing SBP benefits, and the Board declines to extinguish those benefits in favor of the applicant.  Therefore, the Board recommends against correcting the decedent’s records.

4.  The applicant has not shown that a personal appearance with or without counsel will materially add to the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-01120 in Executive Session on 27 Sep 18:

	Panel Chair
	Panel Member
	Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFFF, w/atchs, dated 5 Dec 17.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 8 May 18.
Exhibit E: Applicant’s Rebuttal, dated 15 May 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.