RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-02145
INDEX CODE:137.00
APPLICANT COUNSEL: None
SSN HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
The effective date of the correction of his original application, for
former spouse coverage under the Survivor Benefit Plan (SBP), be
changed to 8 Dec 93 instead of 12 Jul 89, thus eliminating the debt he
incurred.
_________________________________________________________________
APPLICANT CONTENDS THAT:
When the Board corrected his original request it created a debt for
him. The Board should have made the effective date the same as the
modification to the divorce decree.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 7 Mar 02, the Board considered and granted the applicant's request
to show he elected former spouse coverage for an SBP annuity.
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.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states Title 10 USC Section 1450 (f)(3) allows for an SBP
election to be made on behalf of the former spouse, providing the
election is submitted to the Defense and Finance Accounting Service
within the first year following the divorce and, if enacted, the
coverage will be retroactive to the date of the divorce. If the
original divorce decree is silent on SBP and is later amended or
modified to incorporate SBP, the law provides the former spouse one-
year after the date of the court order to request coverage for SBP.
The one-year opportunity does not apply after a modification to the
divorce decree.
It appears the attorney for the former spouse attempted to act on her
behalf in initiating a request for SBP based on the modification to
the divorce decree. But there is no evidence that the request
occurred within the first year of the amended court order. The
language of the modification was imprecise, and if the election was
sent to DFAS-CL it may have been set aside without action.
Until passage of Public Law (PL) 105-261, a deemed election was held
in abeyance while the finance center notified the member to inform
them that the effective date of the election and possible cost could
be delayed to the end of the one-year period following the divorce
providing the member had submitted a voluntary election. In their
original advisory they recommended granting the requested relief, but
under the constraints of current statutory requirements; however,
after consulting with legal counsel, they believe partial relief could
be extended to the applicant by applying the standards that would have
been in effect at time if the applicant had requested relief before
the passage of PL 105-261. DPPTR further states there is no evidence
of an Air Force error or injustice and recommends the request be
denied.
A complete copy of the evaluation is attached at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant, in support of his request, submitted letters from his
former spouse's attorney, indicating the attorney, on behalf of his
former spouse, submitted a request for SBP (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 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
applicant’s previous request to change his SBP spouse coverage to
former spouse coverage was granted. The applicant now contends the
Air Force erred in determining his effective date of coverage
believing it should be established on the date his divorce decree was
modified; however, the applicant’s effective date for coverage was
determined in accordance with the applicable law in effect at the time
he applied for correction of records. Therefore, in the absence of
evidence to the contrary, we find no compelling basis to recommend
granting the relief sought in this application.
4. The applicant's case is adequately documented and it has not
been shown that a personal appearance with or without counsel will
materially add to our understanding of the issue(s) involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
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-
02145 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 5 Jul 02, w/atch.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 22 Jul 02.
Exhibit C. Letter, SAF/MRBR, dated 26 Jul 02.
Exhibit D. Applicant’s Response, dated 22 Aug 02.
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...
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...
___________________________________________________________________ STATEMENT OF FACTS: The Air Force stated that the applicant elected child only SBP coverage based on full retired pay prior to his 1 Mar 73 retirement. They stated that a member who fails to provide SBP coverage for an eligible spouse at the time of retirement may not later elect coverage for that person, or another person of the same category, unless Congress authorizes an open enrollment. ...
___________________________________________________________________ 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 reviewed this application and recommended denial. In Jul 01, former spouse coverage was established...
AF | BCMR | CY2003 | BC-2002-01999
The member could have elected former spouse SBP coverage on the applicant’s behalf when he applied for commencement of his retired pay, but failed to do so. A complete copy of the evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A complete copy of the Air Force evaluation was forwarded to applicant on 9 August 2002 for review and response within 30 days. After a thorough review of the evidence of...
AF | BCMR | CY2003 | BC-2002-02286
The laws governing SBP prohibits a married service member from electing coverage under SBP for a former spouse if the service member declined coverage prior to retirement unless Congress authorizes an open enrollment period. Open enrollment packages were mailed to all retired service members advising them of the opportunity to make or change an SBP election. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the...
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...
_________________________________________________________________ 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,...
AF | BCMR | CY2003 | BC-2003-01282
_________________________________________________________________ STATEMENT OF FACTS: The applicant was unmarried and elected child only SBP coverage based on full retired pay prior to his 1 October 1992 retirement date. Records reflect the applicant and N--- married on 13 April 1993, but he failed to elect SBP coverage for her within the first year following their marriage. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the...