RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-00668
INDEX CODE:137.00
APPLICANT (Deceased) COUNSEL: None
SSN HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former late-husband’s records be corrected to entitle her to a
Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The service member was ordered by the court to maintain her as his
beneficiary under the SBP.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and the service member were married on 14 Feb 47. The
service member, prior to his 1 May 69 retirement, elected spouse and
child coverage under the Retired Serviceman's Family Protection Plan
(RSFPP). The RSFPP was terminated when the service member, during an
open enrollment, elected coverage under SBP for spouse and child based
on a reduced level of retired pay.
The applicant and the service member's divorce was finalized on 20 Jan
75. The divorce decree ordered that after the deduction of the SBP
payment from the service member's military retirement pay, the service
member would received 60 percent pay and the applicant would receive
40 percent of the retired pay.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR reviewed the application and states in reviewing the
service member's records there is no evidence that he attempted
to terminate the applicant's SBP following their divorce; nor is there
any evidence to indicate that he requested cessation of costs when the
law permitted SBP premiums to cease after a spouse beneficiary loses
eligibility, therefore, they cannot speculate regarding his
intentions. Furthermore, there is no indication that the service
member believed, or expected the applicant remain as the beneficiary
of his SBP after the costs of her coverage ceased. Until the
enactment of PL 98-525, there was no provision in the law permitting
the courts to require former spouse coverage be continued if the
retiree did not agree to that provision; therefore, the language in
the applicant's divorce decree is not legally binding. DPPTR
recommends the requested relief be denied.
A complete copy of the evaluation is attached at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to the
applicant on 22 Mar 02, 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 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 the 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. The
language in the divorce decree is duly noted; however, these
provisions apparently are not legally binding because the law did not
provide for former spouse coverage during the contested time period.
Further, we find no evidence that the service member ever requested
former spouse coverage under the provisions of either PL 98-94 or 99-
145. 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 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 AFBCMR Docket Number 02-
00668 in Executive Session on 16 August 2002, under the provisions of
AFI 36-2603:
Mr. Roscoe Hinton, Jr., Acting Panel Chair
Mr. Joseph A. Roj, Member
Mr. Roscoe Hinton, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 20 Feb 02, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 14 Mar 02.
Exhibit C. Letter, SAF/MRBR, dated 22 Mar 02.
ROSCOE HINTON, JR.
Acting Panel Chair
There were no provisions in the law at that time to notify spouses if the servicemember did not elect coverage. There is no evidence that the servicemember elected SBP during any of the authorized open enrollments. Exhibit C. Letter, SAF/MRBR, dated 26 Apr 02.
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