RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02312

XXXXXXXXXXXXXXXXXXXXXX	COUNSEL: NONE

XXXXXXXXXXXXXXXXXXXXXX	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The record of her former spouse be corrected to show that he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

She and her former spouse divorced in 2017.  In the divorce decree, she was designated as the beneficiary of her former spouse’s SBP.  The record currently shows that the benefits should go to the current spouse, but it should reflect former spouse.  Her former spouse was terminally ill for more than a year and unable to complete the necessary paperwork and file an election change.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is the former spouse of a retired Air Force major (O-4).

On 12 Jan 91, the applicant and the former service member were married, according to the marital status affidavit provided by the applicant.

On 31 Dec 02, the former service member retired from active duty.

On 14 Feb 17, according to a divorce decree provided by the applicant, the applicant and her former spouse divorced.  The decree indicates the applicant was designated as the beneficiary to the Survivor Benefit Plan.

On 14 May 19, according to a death certificate provided by the applicant, the former service member died.  The death certificate reflects he was divorced at the time of his death.

The applicant provided a signed/notarized affidavit dated 9 Nov 19, which states she is not currently married, did not marry before age 55, and that her former spouse had not remarried.

According to the notarized SBP Release of Benefits (Arrears of Pay) Affidavit, dated 9 Nov 19, the former member’s son swore/affirmed that he is the former 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.

According to the notarized SBP Release of Benefits (Arrears of Pay) Affidavit, dated 8 Aug 20, the former member’s daughter swore/affirmed that she is the former member’s legal heir and relinquishes any competing interest she may have in the Arrears of Pay in favor of her mother, the applicant and former spouse.

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

APPLICABLE AUTHORITY

An election by the service member to convert spouse coverage to former spouse coverage, “must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.”  Title 10 United States Code, Section 1448(b)(3)(A)(iii)  [10 U.S.C. § 1448(b)(3)(A)(iii)].

If a court has ordered a service member to elect former spouse SBP, then a former spouse can submit his or her own request to DFAS for former spouse SBP coverage.  This is known as a “deemed election request.”  There is a time limit:  “An election may not be deemed to have been made … unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.”  10 U.S.C. § 1450(f)(3)(C).

AIR FORCE EVALUATION

AFPC/DPFFF does not provide a recommendation because there is a competing claimant.  There is no evidence either party submitted a valid former spouse election within the first year following their divorce, as the law requires.  The Defense Finance and Accounting Service-Cleveland (DFAS-CL) records continued to erroneously reflect the applicant as the eligible spouse beneficiary until the former service member’s 23 May 19 death.  There is no evidence that either party remarried.  DFAS-CL records do not reflect the applicant as the Arrears of Pay (AOP) beneficiary; therefore, there is a competing claimant.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Jul 20 for comment (Exhibit D), but has received no response.  On 6 Aug 20, the Board also forwarded to the applicant copies of memorandums from SAF/GCM, dated 18 Oct 06, and the Secretary of the Air Force, dated 22 Jul 15, which will be considered in the processing of her application (Exhibit E).

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.  The Board notes the former member’s willingness to accept a reduction in his retired pay for over two years, even though he had no eligible beneficiary, is indicative of his intent to maintain SBP coverage on the applicant’s behalf.  Furthermore, the former member’s legal heirs expressly waive their entitlement to the refund of SBP premiums included in the Arrears of Pay.  The records continued to show the applicant as the eligible beneficiary, albeit as spouse versus former spouse.  The divorce decree awarded the applicant SBP.  Therefore; the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  Accordingly, 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 MEMBER be corrected to show that:

a. On 14 Feb 17, 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 14 May 19, 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-2019-02312 in Executive Session on 24 Sep 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 3 Apr 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFFF, dated 20 Dec 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 24 Jul 20.
Exhibit E:	Electronic Mail to Applicant, dated 6 Aug 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.