RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03641

XXXXXXXXXXXX (DECEASED MEMBER)	COUNSEL: XXXXXXXXXXXXXXX

XXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED: YES

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 is entitled to SBP coverage because she made a valid deemed election under the law.  She complied with Title 10 United States Code Sections 1450(f)(3)(A) and 1450(f)(3)(C), and the one-year deemed election requirement should be equitably tolled under the circumstances.  Further, she is entitled to SBP coverage as a matter of equity and justice as the record plainly and uniformly indicates that it was her former spouse's clear intention that she receive this benefit after his death, as evidenced by his continued payment of SBP premiums for 20 years after their divorce.  Her former divorce attorney provided an affidavit verifying she sent a certified copy of the divorce decree to the Air Force approximately two months after the divorce was finalized and repeated the process at least two more times because the Air Force repeatedly returned the package to her.  The former attorney’s understanding at the time was that she had done what was necessary under the law to preserve her entitlement to her former spouse’s retirement and SBP benefits.

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 master sergeant (E-7).

On 11 February 1956, according to a marriage certificate provided the applicant, she and the former service member were married.

On 12 September 1977, via DD Form 1883, Survivor Benefit Plan Election Certificate, the former service member elected spouse only SBP coverage based on reduced retired pay naming the applicant as the designated spouse beneficiary.

On 17 October 1988, according to a divorce decree provided by the applicant, the applicant and her former spouse divorced.  The decree indicates the applicant was awarded one-half of the former member’s military pension benefits, as well as the survivor annuity benefits on that pension and any health and life insurance benefits available to him through his employer or his Air Force retirement.  The former service member was instructed to complete the forms necessary to have payments made directly to the applicant from the Air Force Payment Office.

On 8 December 2016, 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.

On 9 February 2017, the Defense Finance and Accounting Service (DFAS) advised the applicant that a divorce decree alone does not constitute a deemed election and the former service member’s record reflects he did not make a request to change his election to former spouse coverage nor did the applicant make a deemed election for former spouse coverage within one year of the divorce.

On 7 August 2019, the applicant was informed she must complete and sign a marital status affidavit.  Additionally, she was asked to have the legal heirs complete and sign a Release of Benefits affidavit to any Arrears of Pay of the Survivor Benefit Program and have it notarized.  The applicant provided a signed/notarized affidavit dated 20 December 2017, which states the applicant is not currently married, did not marry before age 55, and that her former spouse had not remarried.  

On 13 May 2020, according to notarized SBP Release of Benefits (Arrears of Pay) Affidavits, the former member’s son and daughters swore/affirmed that they are the former member’s legal heirs and relinquish any competing interest they may have in the Arrears of Pay in favor of their mother, the applicant and former spouse.

AIR FORCE EVALUATION

AFPC/DPFFF recommends granting the application.  To preclude an injustice and absent a competing claimant, it would be appropriate to (1) enforce the parties’ court-ordered agreement for SBP coverage on the applicant’s behalf, (2) the former member’s record be corrected to reflect SBP coverage be deemed on the applicant’s behalf, and (3) former spouse coverage was established on 18 October 1988.  The applicant and the member were married on 11 February 1956 and the former member elected spouse only coverage based on a reduced level of retired pay prior to his 1 November 1977 retirement.  They divorced on 17 October 1988 and in the divorce decree, the former member agreed to designate the applicant as the SBP beneficiary.  There is no evidence either party submitted a valid election to change spouse to former spouse SBP coverage within the first year following their divorce as the law requires.  DFAS records continued to erroneously reflect the applicant as the eligible spouse beneficiary and SBP premiums were deducted from the member’s retired pay until 1 October 2008, when the paid-up SBP provision became effective.  The member died on 8 December 2016.  There is no evidence that either party remarried.

The complete advisory opinion is at Exhibit B.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant’s counsel on 10 March 2020, for comment (Exhibit C), and the applicant’s counsel replied on 10 April 2020.  In the response, counsel contends there is evidence of the applicant’s multiple efforts in the year following her divorce in 1988, through her divorce attorney, to file a valid deemed election to receive her former spouse’s SBP benefits in compliance with the law.  Evidence also clearly supports the fact that the former service member intended for the applicant to receive his SBP benefits and had SBP premiums deducted from his retired pay until 1 October 2008 when the paid-up SBP provision became effective.  

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 almost 20 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.  Therefore; the Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence substantiates the applicant’s contentions.  Accordingly, the Board recommends correcting the applicant’s records as indicated below.  Approval should be contingent upon recovery of any SBP premiums that may be due as a result of the recommended correction.

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

RECOMMENDATION

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

 a. On 18 October 1988, 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 8 December 2016, 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-2019-03641 in Executive Session on 28 May 2020:

, 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/atchs, dated 12 July 2019.
Exhibit B:	Advisory opinion, AFPC/DPFFF, dated 21 February 2020.
Exhibit C:	Notification of advisory, SAF/MRBC to applicant, dated 10 March 2020.
Exhibit D: Counsel’s response dated 10 April 2020.

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.