RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-00754
INDEX CODE 137.01
COUNSEL: ROBERT G. BERNSTEIN
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former husband’s records be corrected to delete the July 1999 entry in
his retired pay record that canceled her eligibility as a Survivor Benefit
Plan (SBP) beneficiary or, in the alternative a deemed election be added,
effective 11 January 1994.
_________________________________________________________________
APPLICANT CONTENDS THAT:
As part of their divorce she was to continue to be listed as his SBP
beneficiary, and he agreed to do so. However, neither he, nor the
attorney, knew they had to forward a copy of the divorce decree to the Air
Force within one year after the divorce.
In support of the appeal, the applicant submits her personal declaration
and a copy of her Separation Agreement.
The applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted from the
former service member's military records, are contained in the letter
prepared by the appropriate office of the Air Force (Exhibit C).
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR recommends the application be denied and states, in part, that
there is no evidence the service member attempted to establish former
spouse SBP coverage on the applicant’s behalf within the time allowed.
However, the agreement provided the option to maintain SBP coverage either
for the applicant or their children. It appears the member complied with
the imprecise language of the court order when he continued child only
coverage until the youngest child lost eligibility. The service member’s
decision not to convert child only coverage to former spouse coverage is
clearly indicative of his intent not to maintain SBP coverage for her.
The AFPC/DPPTR evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant’s counsel reviewed the evaluation and states that the
evaluation is incorrect in stating that coverage and premiums were
suspended from the spouse portion of the SBP after November 1993. The
premiums for spouse coverage were collected through 1 July 1999. The
applicant understands and agrees to pay the premium of $159.89 a month from
1 July 1999 through 19 December 2001. However, if she is required to repay
premiums from November 1993, she will do so.
Counsel’s complete response, with attachments, is at Exhibit E.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of error or injustice. After a thorough review of the evidence
of record and applicant’s submission, we are not persuaded that relief
should be granted. It appears the member complied with the imprecise
language of the court order when he continued child only coverage until the
youngest child lost eligibility. Furthermore, it appears he did not intend
to maintain SBP coverage for the applicant based on his decision not to
convert child only coverage to former spouse coverage. The applicant’s
contentions are duly noted; however, we do not find these assertions, in
and by themselves, sufficiently persuasive to override the rationale
provided by the Air Force. The office of primary responsibility has
adequately addressed applicant’s contentions and we agree with their
opinion and we adopt the rationale expressed as the basis for our decision
that the applicant has failed to sustain her burden that she has suffered
either an error or an injustice. Hence, we find no compelling basis to
recommend granting the relief sought.
_________________________________________________________________
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 Docket Number 02-00754 in
Executive Session on 16 August 2002, under the provisions of AFI 36-2603:
Mrs. Barbara A. Westgate, Chair
Mr. Roscoe Hinton, Jr., Member
Mr. Joseph A. Roj, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 Feb 02, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 17 Apr 02.
Exhibit D. Letter, SAF/MRBR, dated 26 Apr 02.
Exhibit E. Letter, Counsel, dated 20 May 02, w/atchs.
BARBARA A. WESTGATE
Chair
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. 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. 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...
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