RECORD OF PROCEEDINGS

IN THE MATTER OF:	       DOCKET NUMBER: BC-2019-01549

XXXXXXXXXXXXXXXXXXXXXXXX	       COUNSEL: NONE

XXXXXXXXXXXXXXXXXXXXXXXX	       HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her former spouse’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity.

APPLICANT’S CONTENTIONS

Her former spouse intended for her to receive the SBP annuity.  They were married for 37 years to include the entire time he was in service.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the former spouse of a retired Air Force senior master sergeant (E-8).

On 4 May 67, the applicant and the deceased service member were married.

On 6 Aug 05, the deceased service member retired from active duty.

On 31 May 07, according to a divorce decree provided by the applicant, she and her former spouse divorced.  

On 26 Feb 18, according to a death certificate provided by the applicant, the service member died. The death certificate reflects he was divorced at the time of his death.

On 10 Jun 19, the applicant signed a notarized affidavit, which states she is not currently married, did not marry before age 55, and that her former spouse had not remarried.

On 7 Jun 19, according to a notarized statement, the deceased service member’s son swore/affirmed that he is the deceased service member’s legal heir and relinquishes any competing interest he may have in the Arrears of Pay in favor of his mother, the applicant and former spouse.

On 4 Nov 19, the AFBCMR staff sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record: SBP-Marital Status Affidavit (Former Spouse); SBP-Marital Status Affidavit (Retiree); SBP-Release of Benefits Affidavit (Current Spouse); SBP Release of Benefits Affidavit (Arrears of Pay).  See Exhibit C.

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application.  There is no evidence of Air Force error or injustice in this case, and no basis in law to approve this request.  The applicant and the deceased service member were married on 4 May 1967; however, the deceased service member did not complete an SBP election prior to his 6 Aug 05 retirement.  Absent a valid election, Defense Finance and Accounting Service - Cleveland Center (DFAS-CL), established automatic spouse coverage based on full-retired pay as required by law.  The parties divorced on 31 May 07, and the divorce decree was silent on SBP.  There is no evidence either party voluntarily submitted a valid election to change automatic spouse coverage to former spouse SBP coverage within the first year following their divorce as the law requires.  DFAS-CL records continued to reflect automatic spouse coverage until the deceased service member's 26 Feb 18 death.  There is no evidence that either party remarried.  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 failed 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 complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Feb 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of AFPC/DPFFF against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  Although the divorce decree was silent on SBP, it appears the member's intent was for the applicant to receive this benefit based on his continued payment of SBP premiums for over 10 years until his death.  In addition, neither the member or applicant remarried and the son relinquished competing interest of Arrears of Pay to the applicant, who is his mother and the former spouse.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the MEMBER be corrected to show that:

a. On 31 May 07, he submitted a timely and effective election for former spouse coverage under the Survivor Benefit Plan, based on the previous reduced level of retired pay, naming APPLICANT as the eligible beneficiary.

b. On 26 Feb 18, APPLICANT submitted a timely and effective claim for survivor benefit annuity.

c. Approval should be contingent upon recovery of Survivor Benefit Plan premiums.  If applicable, the monthly survivor benefit annuity will be applied to the premium debt until the total amount of premiums owed is recovered.

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-2019-01549 in Executive Session on 24 Sep 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 10 Oct 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Notification of SBP Affidavits, SAF/MRBC, dated 4 Nov 19.
Exhibit D:	Advisory opinion, AFPC/DPFFF, dated 10 Feb 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 18 Feb 20.

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