RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03482 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: She be designated as the spouse beneficiary under the decedent’s Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: For nearly four years, she has been told that she was entitled to receive a portion of the decedent’s pay. Defense Finance and Accounting Service (DFAS) stated that in order to receive the SBP benefit they only needed to be married for 10 years, the former spouse had to be deceased and she had to pay an $18,496.42 debt. She can repay the outstanding debt. She learned that no one at DFAS was aware of the letter dated 11 May 11 stating she was entitled to SBP and that the person who sent the letter was no longer employed at DFAS. All she wants is for someone to correct the mistake. The Board should consider it in the interest of justice to consider her untimely application as it has taken DFAS over three years to admit they made a mistake. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Oct 76, the decedent retired in the grade of Technical Sergeant (TSgt, E-6). A marriage certificate issued by the State of Texas, County of Walker reflects the decedent and the applicant were married on 8 Feb 88. A certificate of death issued by the State of Texas, reflects the decedent died on 3 Dec 10. The applicant provided a letter from DFAS dated 11 May 11 which states that the decedent had been paying into the SBP since 1 Oct 76; however, they did not have record of the decedent’s first spouse’s death certificate or divorce decree. The applicant was advised that upon providing these documents, her SBP account would be established and all retroactive pay would be issued. The applicant provided a signed, notarized affidavit dated 20 Oct 14 stating she is not currently married. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial of the request. In Accordance With (IAW) 10 U.S.C. § 1448(5)(B), the decedent had to notify DFAS of his marriage within one year of his first anniversary in order to provide SBP coverage for his spouse. DFAS must assume the decedent was fully informed of the provisions of the SBP at time of retirement. As he made no effort to elect coverage for his spouse within the one year following the date of marriage, they must assume that the decedent did not desire SBP coverage for his spouse. On 21 May 76, prior to his retirement, the decedent elected spouse and child SBP coverage. The decedent and his former spouse divorced on 8 Jul 76 and he retired on 1 Oct 76. At the time of his retirement, the decedent was unmarried. Accordingly, no spouse SBP coverage was established. DFAS erroneously established spouse SBP coverage and deducted SBP premiums for spouse coverage until Mar 83. At that time, the premiums associated with the spouse coverage which had been erroneously deducted from Oct 76 to Mar 83 were refunded to the decedent. Since the decedent was unmarried at the time of retirement, he was eligible to elect spouse SBP coverage upon subsequent marriage; however, the election must be made within one year of the marriage date. The decedent and the applicant were married on 13 Feb 88; however, there is no evidence he sought to establish SBP coverage for her and no premiums were paid after their marriage. On 13 Apr 11, the applicant submitted a claim for SBP annuity and on 11 May 11, DFAS erroneously advised her that the decedent had been paying into SBP since 1 Oct 76. On 21 Feb 14, DFAS advised the applicant that her claim for an SBP annuity was denied but did not advise her of her right to appeal the denial to the Defense Office of Hearings and Appeals (DOHA). On 29 Jul 14, the applicant was advised of her right to submit an appeal to DOHA within 30 days. An appeal from the applicant was never received. This letter also advised her that she could pursue corrective action to the AFBCMR. A complete copy of the DFAS evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 2 Feb 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the applicant was regrettably misinformed regarding the decedent’s SBP election on file; however, we are not persuaded there was an error or injustice to warrant granting the requested relief. Accordingly, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2014-03482 in Executive Session on 6 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Aug 14, w/atchs. Exhibit B. Affidavit, Applicant, dated 20 Oct 14. Exhibit C. Memorandum, DFAS-JFBE/CL, dated 24 Dec 14. Exhibit D. Letter, SAF/MRBR, dated 2 Feb 15.