RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-02372
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
___________________________________________________________________
APPLICANT REQUESTS THAT:
Her late former spouse’s records be corrected so that she may be
eligible for a Survivor Benefit Plan (SBP) annuity.
___________________________________________________________________
APPLICANT CONTENDS THAT:
The deceased member cancelled the SBP program on 3 May 00, under
the influence of a family member, just three months before he
passed away.
In support of her appeal, applicant submitted a copy of their
marriage certificate and a copy of the former member’s death
certificate.
Applicant’s complete submission is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The decedent was married and he elected spouse and child coverage
based on full retired pay prior to his 1 Apr 78 retirement.
Records reflect he divorced on 17 May 82; in Oct 83, the spouse
portion of the SBP was suspended and premiums refunded to the
decedent retroactive to the date of divorce. The decedent and the
applicant were married on 28 Dec 83. They were divorced on
13 Aug 1999.
___________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommended denial. They state that a person’s
eligibility as an SBP spouse beneficiary terminates upon divorce.
However, the law provides two mechanisms for changing spouse
coverage to former spouse coverage, which 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 as long as legal
documentation is provided that the member agreed or that the court
ordered the member to establish former spouse coverage. 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. 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.
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 coverage was reinstated. They
divorced on 13 Aug 99, and the separation agreement, incorporated
in the divorce decree, states that each party shall be the sole
owner of their retirement accounts. The parties further agreed to
waive all rights as “widow, widower, heir, distributee, survivor or
next of kin” to each other’s estate.
The finance center received correspondence on 3 May 00 in which the
member requested the cancellation of his SBP and indicated a
previous request had been misplaced in the mail system. The spouse
portion was suspended and premiums were refunded retroactive to the
date of divorce. The decedent died on 1 Aug 00.
It is ultimately a retiree’s responsibility to elect the SBP
coverage that suits his or her families’ needs. The member could
have elected former spouse coverage voluntarily within the first
year following divorce, but failed to do so. Instead, he requested
SBP coverage be cancelled, indicative of his intent not to maintain
SBP coverage on the applicant’s behalf. There is no documentation
to substantiate the applicant’s claim that the decedent was
incompetent.
A complete copy of the evaluation is at Exhibit B.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant responded to the Air Force evaluation with a personal
note attached indicating that the decedent was feeling very sick
prior to his death.
Applicant’s response to the evaluation, with attachment, is at
Exhibit D.
___________________________________________________________________
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. 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 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
02-02372 in Executive Session on 21 January 2003, 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 22 Jul 02, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 14 Aug 02.
Exhibit C. Letter, SAF/MRBR, dated 16 Aug 02.
Exhibit D. Letter, Applicant, dated 11 Sep 02, w/atchs
DAVID C. VAN GASBECK
Panel Chair
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...
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.
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 | CY2002 | BC-2002-03158
The applicant and the member divorced on 3 February 1983. Effective 1 March 1986, Public Law (PL) 99-145 permitted retiring members to select SBP coverage for a former spouse with the same cost as coverage options as a spouse. A complete copy of the evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that SBP was set up to protect the spouse and this is why a spouse’s signature is...
AF | BCMR | CY2003 | BC-2002-03158
The applicant and the member divorced on 3 February 1983. Effective 1 March 1986, Public Law (PL) 99-145 permitted retiring members to select SBP coverage for a former spouse with the same cost as coverage options as a spouse. A complete copy of the evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that SBP was set up to protect the spouse and this is why a spouse’s signature is...
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...
_________________________________________________________________ STATEMENT OF FACTS: The Air Force stated that the applicant was married and elected child only SBP coverage based on full retired pay prior to his 12 May 83 disability retirement. If a member withdraws under this provision, there is no immediate refund of premiums; however, applicable spouse premiums paid by the member can be refunded to the spouse following the member’s death. ...
AF | BCMR | CY2003 | BC-2002-03764
_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR recommend that applicant’s request be denied and stated that there is no evidence of Air Force error or injustice, or merit in fact, nor basis in law to approve this case. Briefing material used at the time the member completed his RSFPP election clearly stated that “dependents acquired after you retire are not eligible to receive Family Protection Plan annuity payments,” payments would only...
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. If neither the member nor former spouse requests the election change within the one-year eligibility period, former spouse coverage may not be established thereafter. There is no evidence the decedent nor the applicant took the required action to change the coverage, and SBP premiums...
The decedent and the applicant married on 4 Jun 79 and coverage and premiums were reinstated on the first anniversary of their marriage. As a result of the CG’s decision, the AFBCMR advised the applicant by letter dated 17 Sep 98 that, since the Board lacked the authority to approve claims that were filed more than six years after the death of the service member, her case was being returned and administratively closed (Exhibit D). Notwithstanding her on again/off again marriage to the...