RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-03271
COUNSEL: None
HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former husband's records be corrected to show he filed a timely
election for former spouse coverage under the Survivor Benefit Plan
(SBP) and any SBP premium payments due be waived.
_________________________________________________________________
APPLICANT CONTENDS THAT:
In accordance with the attached Divorce Settlement, her former husband
should have changed the SBP coverage from Spouse to Former Spouse
within 1 year of the divorce. However, it was erroneously changed to
No Beneficiary on 1 July 1994. The divorce was finalized on March
1993. She was not informed of the SBP change. She truly believes the
change was made erroneously and her former husband assumed that she
would be informed by the Finance Center if there were a problem.
She understands that the SBP must be paid before she receives the
Annuity payments. However, she respectfully requests that this be
waived due to her medical and financial situation. She is undergoing
dialysis treatments for kidney failure due to complications from
Diabetes Type II. When her former husband passed away on 19 July
2002, her former spouse income was terminated. She is requesting
assistance through the Social Security System and her total income is
currently approximately $565 each month.
In support of her request, applicant submits a marriage certificate,
Divorce Settlement, SBP Information Sheet, Death Certificate, letter
from her doctor, DD Form 1884, Application For Annuity under Retired
Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit
Plan (SBP), and DD Form 2789, Waiver/Remission of Indebtness
Application.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member and applicant married on 17 October 1964 and the member
elected spouse and child coverage based on a reduced level of retired
pay prior to his 1 November 1986 retirement. The parties divorced 11
March 1993 and the divorce decree awarded the SBP to the applicant;
however, neither party submitted a valid election change within the
required time period. In September 1993, the Defense Finance and
Accounting Service (DFAS) suspended the spouse portion of the SBP.
The youngest child (date of birth 6 January 1972) lost eligibility in
June 1994. The member died on 19 July 2002.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR reviewed this application and states that there is no
error. However, to preclude a possible injustice, we recommend the
member’s record be corrected to reflect that on 12 March 1993, he
elected to change SBP spouse and child to former spouse coverage based
on the previous reduced level of retired pay, naming Esther M. White
as the eligible beneficiary. Approval should be contingent upon
recoupment of appropriate premiums. In the event relief is granted,
the unpaid contributions to the SBP that should have been deducted
from the member’s retired pay through the date of his death
(approximately $9,100) will be collected from any annuity payment the
applicant would be entitled to receive.
AFPC/DPPTR evaluation is provided at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 15
Nov 02 for review and comment. As of this date, no response has been
received by this office.
_________________________________________________________________
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. Sufficient relevant evidence has been presented to demonstrate the
existence of an error or injustice warranting partial relief. After
thoroughly reviewing the circumstances of this case, it is the Board's
opinion that the former spouse should receive SBP coverage at the
reduced level of retired pay to comply with the divorce decree
awarding the asset to her by the court. Therefore, the Board accepts
the opinion and recommendation from the Chief, Retiree Services
Branch, and recommends that the records of the deceased member be
corrected to the extent indicated below.
4. Insufficient relevant evidence has been presented warranting a
waiver of the premiums due for the period September 1993 to July 2002.
In this respect, we note that the deceased member in order to
continue his SBP coverage, based on the court decision, would have
been required to pay the necessary premiums. While we understand the
applicant's medical and financial situation, the law requires that the
premiums be paid. In view of the above, we do not recommend favorable
action on this portion of her application.
______________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to FORMER MEMBER, be corrected to show that on 12 March 1993, he
elected to change his SBP election from "spouse and child" coverage to
"former spouse coverage" based on reduced level of retired pay, naming
Esther M. White as the eligible beneficiary.
_______________________________________________________________
The following members of the Board considered Docket Number 02-0321 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 2 Oct 2002, w/atchs.
Exhibit B. Letter, AFPC/DPPTR, dated 14 Nov 02.
Exhibit C. Letter, SAF/MIBR, dated 22 Dec 2000.
DAVID C. VAN GASBECK
Panel Chair
AFBCMR 02-03271
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:
The pertinent military records of the Department of the Air Force
relating to APPLICANT,be corrected to show that on 12 March 1993, he
elected to change his SBP election from "spouse and child" coverage to
"former spouse coverage" based on reduced level of retired pay, naming
XXXX XXXX as the eligible beneficiary.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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