RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-02858
INDEX NUMBER: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
___________________________________________________________________
APPLICANT REQUESTS THAT:
Her late husband's records be corrected so that she may be eligible
for a Survivor Benefit Plan (SBP) annuity.
___________________________________________________________________
APPLICANT CONTENDS THAT:
The reasons the applicant believes the records to be in error or
unjust and the evidence submitted in support of the appeal are at
Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The 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 recommended denial. 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. The law was amended to
require the spouse’s written concurrence in elections for less than
maximum spouse coverage. However, both requirements applied only
to the spouse married to the member at the time of retirement.
Although the decedent’s prior marital and family history is
unavailable, records indicated the member declined SBP coverage
prior to his 1 Jun 77 retirement. The applicant and the member
married on 11 Nov 89 and he died on 21 Sep 01.
The member could have elected SBP coverage on two open enrollment
periods (1 Apr 92 – 31 Mar 93) and (1 Mar 99 – 29 Feb 00), but he
failed to do so. They further state that there is no evidence of
an error or injustice in this case.
A complete copy of the 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 Nov 01 for review and comment within 30 days. Through her
member of Congress, applicant provided her husband’s first wife’s
death certificate (Exhibit E).
___________________________________________________________________
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 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. 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
AFBCMR Docket Number 01-02858 in Executive Session on
23 April 2002, under the provisions of AFI 36-2603:
Mr. David C. Van Gasbeck, Panel Chair
Ms. Patricia D. Vestal, Member
Mr. Roscoe Hinton Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 2 Oct 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 29 Oct 01, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 2 Nov 01, w/atchs.
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...
AF | BCMR | CY2003 | BC-2003-02492
Law has established that SBP requires information be provided to servicemembers and spouses concerning the options and effects of SBP prior to the servicemember’s retirement. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR states the applicant provided her written concurrence on the DD Form 2656 declining SBP coverage. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the...
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...
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. At that time, spouse coverage was suspended and premiums deducted after the divorce were refunded to the member. DPPTR indicated that the law in...
AF | BCMR | CY2003 | BC-2002-01037
_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR states Public Law (PL) 99-145, established on 8 November 1985, required as of 1 March 1986 spousal concurrence of the SBP election, if the election was providing less than maximum spouse coverage. According to the Defense Finance and Service - Cleveland Center (DAFS- CL) the servicemember elected full spouse and child coverage under SBP, but later submitted a corrected election to decline SBP...
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 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.
Even though the applicant and the decedent were married at the time of his retirement (1 Apr 91), records indicate that the applicant’s valid concurrence in the decedent’s SBP election was obtained prior to his retirement. Subsequently, the decedent was eligible to provide coverage for the applicant during two SBP open enrollment periods authorized by Public Laws (PLs) 101-189 and 105-126 (1 Apr 92 – 31 Mar 93 and 1 Mar 99 – 29 Feb 00, respectively). We took notice of the applicant's...
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 as long as legal documentation is provided that the member agreed or that the court ordered the member to establish former spouse coverage. On 4 Dec 01, it was requested that the member provide a completed DD Form 2656-1, SBP Election Statement for Former Spouse coverage, and an acknowledgement of debt statement. ...
The RSFPP election form provided by the applicant reflects he elected spouse and child coverage with Option 4. However, if the Board recommends granting the request, the decedent’s record should be corrected to show RSFPP spouse and child coverage based on one-half of his retired pay was established effective 1 June 1970. We therefore agree with the recommendation of the Air Force and adopt the rationale expressed as the basis for our decision that her late husband’s intent not to extend...