RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:              DOCKET NUMBER: BC-2011-01343

	                             COUNSEL:  NONE
		
	                             HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be awarded her former spouse’s Survivor Benefit Plan 
(SBP) annuity.

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APPLICANT CONTENDS THAT:

She was awarded the SBP annuity as a part of the divorce 
settlement.  She was not informed or aware that additional 
forms were required to be completed within 12 months of the 
divorce being finalized for the SBP annuity.  The error was 
not discovered until after the death of her former spouse. 

In support of her request, the applicant provides a copy of 
the member’s DD Form 214, Certificate of Release or 
Discharge from Active Duty, a copy of the divorce decree 
and a copy of the member’s death certificate.

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

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STATEMENT OF FACTS:

The decedent retired on 1 March 1988 and died on 4 November 
2010.  

The remaining relevant facts pertaining to this application 
are contained in the letter prepared by the appropriate 
office of the Air Force, which is attached at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPSIAR does not provide a recommendation because it 
involves two potential SBP beneficiaries.  They do note 
that Defense Enrollment Eligibility Reporting System 
(DEERS) records show the member’s spouse at the time of his 
death is currently receiving the SBP monthly annuity.  The 
member married his surviving spouse on 4 October 2009 and 
on 2 September 2010 he submitted an SBP Election Change 
Certificate requesting SBP coverage for her.  

The complete DPSIAR evaluation is at Exhibit C.

On 19 Dec 11, the applicant was provided advisories 
prepared by the SAF/MRB Legal Advisor, HQ USAF/JAA, and 
SAF/GCM on similar cases considered by the Board.  The 
Board has been advised that it should not consider cases 
involving disputed claims unless a court of competent 
jurisdiction has ruled in the case or pushes the AFBCMR to 
make a determination in the case.  
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 19 December 2011, for review and comment within 
30 days.  As of this date, this office has received no 
response (Exhibit E).

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by 
existing law or regulations.

2.	The application was timely filed.

3.	Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We 
took notice of the applicant’s complete submission in 
judging the merits of the case.  This Board has been 
previously advised it should not consider cases, such as 
the applicant’s, involving disputed claims unless a court 
of competent jurisdiction has ruled in the case or pushes 
the AFBCMR to make a determination in the case.  The 
applicant asserts that the divorce decree issued to her and 
the deceased former member awarded her benefits under SBP.  
However, she has not provided any evidence that she or the 
deceased former member submitted a valid former spouse 
election during the first year following their divorce.  As 
noted in the 27 January 2009 opinion of the SAF/MRB Legal 
Advisor, federal law makes the election unavailable when 
the deemed election is not timely effected.  Further 
complicating this case is the fact that after he remarried, 
the deceased former member elected coverage for his current 
spouse who is now receiving the SBP benefits.  
Consequently, this is now a case involving a disputed 
claim.  Since there has been no ruling by a court of 
competent jurisdiction regarding this issue, we do not find 
that any basis exists for us to decide this case.  In our 
view, the applicant’s only recourse is to return to a court 
of competent jurisdiction to have the issue decided.  
Therefore, in the absence of evidence to the contrary, we 
must deny the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did 
not demonstrate the existence of material error or 
injustice; that the application was denied without a 
personal appearance; and that the application will only be 
reconsidered upon the submission of newly discovered 
relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket 
Number BC-2011-01343 in Executive Session on 24 January 
2012, under the provisions of AFI 36-2603:

				, Panel Chair
				, Member
				, Member

The following documentary evidence was considered:

	Exhibit A. DD Form 149, dated 4 Apr 11, w/atchs.
	Exhibit B. Master Personnel Record.
  	Exhibit C. Letter, AFPC/DPSIAR, dated 15 May 11.
     Exhibit E. Letter, AFBCMR, dated 19 Dec 11 w/ atchs.




					
					Panel Chair 

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