RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-02075
INDEX CODE: 137.00, 137.01
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
This application for correction of the records of APPLICANT was
submitted by -- (former spouse).
APPLICANT REQUESTS:
Corrective action that would entitle her to a Survivor Benefit Plan
(SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
After their divorce, her ex-husband did not tell her she deserved
anything.
In support of her request, the applicant submits a personal statement
and additional documents associated with the issues cited in her
contentions. The applicant’s complete submission, with attachments,
is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member voluntarily retired from active duty in the grade of master
sergeant (E-7) on 1 Oct 72. He had completed a total of 20 years and
5 days of active service for retirement.
The remaining relevant facts pertaining to this application, extracted
from the applicant’s military records, are contained in the letter
prepared by the appropriate office of the Air Force at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommends the application be denied. DPPTR stated that
there is no error or injustice in this case. The member and the
applicant were married on 11 Apr 50, but he declined SBP coverage
prior to his 1 Oct 72 retirement. He elected spouse only SBP coverage
based on a reduced level of retired pay on the applicant’s behalf
during the open enrollment period (1 Oct 81 - 30 Sep 82). The parties
divorced on 26 Oct 82, but the finance center did not learn of the
change in the member’s martial status until Mar 85. At that time,
spouse coverage was suspended and premiums deducted after the divorce
were refunded to the member. The member died on 2 May 91. DPPTR
indicated that the law in effect at the time of the applicant’s
divorce did not allow retired members to provide SBP coverage even if
they wished to voluntarily continue their former spouse’s eligibility.
Because more than six years have elapsed since the member’s death,
payment of an SBP annuity would be barred by the statute of
limitations. DPPTR stated that there is no error or injustice in this
case. However, if the Board’s decision is to grant relief, approval
should be contingent upon the recovery of premiums the member would
have paid if he had made the election at that time. The HQ AFPC/DPPTR
evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 26
October 2001 for review and response. As of this date, no response
has been received by this office (Exhibit D).
_________________________________________________________________
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 carefully reviewed
the appliant’s submission in judging the merits of this case; however,
we agree with the opinion and recommendation of the Air Force office
of primary responsibility and adopt their rationale as the basis for
our conclusion that the applicant has not been the victim of an error
or injustice. While the law in effect at the time of the applicant’s
divorce did not allow retired members to provide SBP coverage, we note
that the former member did have two other options to elect survivor
coverage, but chose not to establish coverage on the applicant’s
behalf. Therefore, in the absence of evidence to the contrary, we
find no basis on which to favorably consider the requested relief.
_________________________________________________________________
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 Docket Number 01-02075
in Executive Session on 19 February 2002, under the provisions of AFI
36-2603:
Mr. David C. Van Gasbeck, Panel Chair
Mr. Joseph A. Roj, Member
Ms. Patricia D. Vestal, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Aug 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 19 Oct 01.
Exhibit D. Letter, SAF/MRBR, dated 26 Oct 01.
DAVID C. VAN GASBECK
Panel Chair
The service member and G. (the applicant) were married on 14 Sep 94; however, the service member did not notify DFAS of the change in his martial status nor did he request to establish coverage for his new spouse. On 21 Feb 01, the service member's former spouse (M.) submitted a request for correction of his military records to entitle her to an SBP annuity. The beneficiary form that the applicant refers to was to entitle her to the service member's unpaid retired pay, not as a beneficiary...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.
However, the law provides two mechanisms for changing spouse coverage to former spouse coverage, which must be exercised within the first year following divorce. If neither the member nor the former spouse requests the election change within the one-year eligibility period, former spouse coverage may not be established thereafter. The decedent and the applicant were married on 28 Dec 83; in Sep 85, the decedent notified the finance center of the change in his marital status and spouse...
In this regard, we are constrained to note that the applicable statute (10 USC Section 1450(f)(3)(C)), time limit for request by former spouse, provides that “An election may not be deemed to have been made under subparagraph (A) in the case of any person 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.” Such a requirement permits a former spouse to circumvent the stipulations of a...
They stated the laws controlling the SBP preclude a married member, who declined spouse coverage at the time of retirement, from providing SBP former spouse coverage following divorce unless Congress authorizes an open enrollment. A complete copy of the evaluation is at Exhibit B. 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 office of primary responsibility and adopt...
_________________________________________________________________ AIR FORCE EVALUATION: The Chief, Retiree Services Branch, AFPC/DPPTR, reviewed the application and states the law in effect at the time the service member divorced the applicant did not have a provision to elect SBP coverage for a former spouse even if the divorce decree made a reference to the SBP. The service member did not elect coverage for his minor children at the time of his retirement. Exhibit C. Letter, SAF/MIBR,...
_________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant's wife submitted a letter stating if they had been counseled adequately they would have not chosen to resume SBP coverage. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 25 September 2001 under the provisions of AFI 36- 2603: Mr. David C. Van Gasbeck, Panel...
AF | BCMR | CY2003 | BC-2002-03271
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-03271 COUNSEL: None HEARING DESIRED: No _________________________________________________________________ APPLICANT REQUESTS THAT: Her former husband's records be corrected to show he filed a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) and any SBP premium payments due be waived. ...
They stated that Public Law (PL) 92-425, which established the SBP, required the spouse to be notified when a member, who retired on or after 21 Sep 72, declined or elected less than maximum coverage. However, both requirements applied only to the spouse married to the member at the time of retirement. ___________________________________________________________________ The following members of the Board considered this application AFBCMR Docket Number 01-02858 in Executive Session on 23...
They state that the law controlling the SBP allows a retired member to convert from spouse to former spouse coverage within one year following divorce. 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 office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Exhibit B.