RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-02225
INDEX CODE: 137.01
COUNSEL: None
HEARING DESIRED: Not indicated
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to retroactive, present and future Survivor Benefit Plan
(SBP) benefits.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The deceased member served in the U.S. Air Force for 26 years and they were
married for 20 of those years. She believes she is entitled to
retroactive, present and future benefits. She has tried, in the past,
numerous time to get the paper work started, but obviously to no avail.
In support of the appeal, the member’s former spouse submits an Application
for Annuity, Survivor Benefit Plan Election Certificate, and Divorce
Decree.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The deceased member and applicant were married on 31 May 1966. The member
retired on 1 August 1977 and elected spouse and child SBP coverage based on
full retired pay. The parties divorced on 12 November 1985 and the divorce
decree was silent on the SBP.
There is no record that the member notified the Defense Finance and
Accounting Service (DFAS) of the divorce and SBP premiums continued to be
deducted until his death on 26 April 1989.
The applicant (member’s former spouse) remarried on 3 April 1991, prior to
her 55th birthday (date of birth: 24 November 1943).
A spouse loses eligibility as a spouse beneficiary following divorce.
However, the law provides two mechanisms for changing spouse coverage to
former spouse coverage. Both must be exercised within the first year
following divorce: the retiree may file an election change, or 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 that the member agreed to establish former spouse coverage.
If the divorce decree was granted prior to passage of Public Law (PL) 99-
661 (14 Nov 86), or the court is silent on the matter of SBP, the member
can submit a voluntary election, but there is no provision by which the
former spouse can request a deemed election. If the member does not elect
former spouse coverage during the one-year eligibility period, coverage may
not be established thereafter. Although SBP premiums may continue to be
deducted from the member’s retired pay following divorce, the former spouse
is not eligible to receive annuity payments in the event of the member’s
death.
Former spouse SBP coverage is suspended if the former spouse remarries
before age 55. Costs cease effective the first day of the month after the
month of remarriage. However, eligibility and premiums are reinstated
effective the first day of the month after the date the former spouse’s
remarriage terminates. If the member dies while the former spouse is
ineligible, entitlement would be reinstated in the event the disqualifying
marriage subsequently ends.
_________________________________________________________________
AIR FORCE EVALUATION:
The Chief, Retiree Services Branch, Directorate of Pers Program Mgt,
AFPC/DPPTR, reviewed this application and states that there is no record
that the retiree submitted a request for former spouse SBP coverage
following the divorce. Although the member continued to pay SBP premiums
from his retired pay, the applicant did not automatically become the
beneficiary following divorce. Furthermore, the six-year statute of
limitations for submitting a claim for payment of an SBP annuity expired 26
April 1995. There is no evidence of Air Force error, or basis in law to
award the applicant an annuity; therefore, they recommend the request be
denied.
A complete copy of the evaluation is attached at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to the applicant
on 15 February 1999, for review and response. 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 probable error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case; however,
we agree with the opinion and recommendation of the Air Force and adopt
their rationale as the basis for our conclusion that the applicant has not
been the victim of an error or injustice. Therefore, in the absence of
evidence to the contrary, we find no compelling basis to recommend granting
the relief sought in this application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of probable 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.
_________________________________________________________________
The following members of the Board considered this application in Executive
Session on 25 May 1999, under the provisions of AFI 36-2603:
Mrs. Barbara A. Westgate, Panel Chair
Ms. Ann L. Heidig, Member
Mr. Mike Novel, Member
Ms. Gloria J. Williams, Examiner (without vote)
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 26 Aug 98, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 3 Feb 99.
Exhibit D. Letter, AFBCMR, dated 15 Feb 99.
BARBARA A. WESTGATE
Panel Chair
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Although SBP premiums may continue to be deducted from the member’s retired pay following divorce, the former spouse is not eligible to receive annuity payments in the event of the member’s death. Discussion: Although the member did not submit a valid election to voluntarily change from spouse to former spouse coverage within the first year following divorce, there is no evidence that he requested coverage be terminated and continued to pay SBP premiums, indicative of his intent to maintain...
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. The parties divorced on 17 Oct 86 and the member agreed to continue SBP coverage on the applicant's behalf; however, neither submitted a valid election to change the SBP coverage from spouse to former spouse. Premiums for spouse coverage continued to be deducted from his retired pay and finance records erroneously listed...
AIR FORCE EVALUATION: The Chief, Retiree Services Branch, AFPC/DPPTR, reviewed this application and states that at the time of the applicant's divorce there was no provision under the SBP law to continue coverage to a former spouse. THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did noz demonstrate the existence of probable material error o r injustice; that the application was denied without a personal appearance; and that the application will only be...
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DPPTR adds that should the applicant provide the pertinent documentation, it would be appropriate to change the record to reflect on the day following the date of divorce, he elected to change his SBP coverage to former spouse coverage based on previous reduced level of retired pay and contingent on recoupment of applicable premiums. DPPTR’s complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A...
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. Although SBP premiums may continue to be deducted from the member’s retired pay following divorce, the former spouse is not eligible to receive annuity payments in the event of the member‘s death. Recommendation: Although there is no evidence of Air Force error, to preclude a possible injustice, we recommend that the...
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. Discussion: Even though the member did not make a valid election change, there is no evidence he requested coverage for his former spouse be terminated or established for his new spouse following his remarriage, all indicative of his intent to maintain his former spouse as the eligible SBP beneficiary. Recommendation:...
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The applicant requests correction of military records as stated in the application to the Board and as restated herein. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too). It also permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.