RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00489
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former husband’s records be corrected to show that he elected former
spouse coverage under the Survivor Benefit Plan (SBP) naming her as
beneficiary.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She and the service member were married for 36 years prior to their divorce
and she did not ask for maintenance at the time of their divorce with the
agreement he would provide coverage for her under the SBP program.
In support of her appeal, the applicant submits her personal statement, and
copies of their marriage certificate and divorce decree.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and the service member were married on 12 July 1953.
Prior to the member’s 1 September 1973 retirement in the grade of master
sergeant, he declined SBP coverage for his spouse.
During the one-year open enrollment period (1 Oct 81 - 30 Sep 82)
authorized by Public Law 97-35 (PL 97-35), the member elected full spouse
only coverage.
The applicant and the member divorced on 9 March 1989. In April 1989, the
member submitted a request to the finance center to eliminate the applicant
as the eligible SBP spouse beneficiary and his spouse premiums were
suspended retroactive to the date of divorce and overpaid premiums
refunded.
The member was not married when he died on 9 March 1998.
_________________________________________________________________
AIR FORCE EVALUATION:
The Chief, Retiree Services Branch, AFPC/DPPTR, recommends the application
be denied and states, in part, that the applicant’s claim that she is
entitled to all benefits is not supported by the divorce decree. The
member could have elected former spouse coverage voluntarily within the
first year following their divorce, but failed to do so. Instead, he
elected to suspend his SBP premiums one month after the divorce, indicative
of his intent not to maintain SBP coverage on her behalf. Furthermore, the
applicant has failed to explain her five-year delay in requesting
corrective action.
A complete copy of the evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states that she did not know all of the rules and regulations
regarding SBP upon divorce. She asked for all benefits in the divorce
settlement thinking that included SBP. Her discussion with the member at
the time included SBP, which he would provide for her. Regarding her
timeliness in seeking corrective action, she did not wait five years to
seek relief. To the contrary, she has made several trips to Whiteman AFB
and all they have told her is that she was not eligible for benefits. She
has also seen a Department of Veterans Affairs (DVA) representative several
times and spent much time on the phone and sending letters in an attempt to
obtain assistance.
Applicant’s complete response 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; 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. After a thorough review of the evidence
of record and applicant’s submission, we are not persuaded that relief
should be granted. 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 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 BC-2003-00489
in Executive Session on 26 June 2003 under the provisions of AFI 36-2603:
Mr. Joseph A. Roj, Panel Chair
Mr. William H. Anderson, Member
Mr. Roscoe Hinton, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 24 Jan 03, w/atchs.
Exhibit B. Member's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 11 Mar 03.
Exhibit D. Letter, SAF/MRBR, dated 21 Mar 03.
Exhibit E. Letter, Applicant, dated 29 Mar 03.
JOSEPH A. ROJ
Panel Chair
AF | BCMR | CY2004 | BC-2003-03233
_________________________________________________________________ APPLICANT CONTENDS THAT: Counsel states that, prior to the former member’s retirement from the Air Force, he elected SBP coverage for “spouse and child.” On 29 December 1983, the member and applicant divorced and their divorce decree incorporated a settlement agreement wherein the applicant would receive “all (100%) of the Husband’s Survivor benefits that can be paid to a former spouse.” The Defense Finance and Accounting...
He was retired from the Air Force before he married his former spouse, and against his request, she is receiving his SBP benefits. At that time he requested his former spouse be removed from the SBP and that the applicant be designated as the eligible spouse beneficiary when she gained eligibility. Applicant’s letter is at Exhibit D. On 24 March 2003, a copy of a USAF/JAG evaluation regarding former spouse requests for SBP coverage was forwarded to the applicant for review and comment.
AF | BCMR | CY2004 | BC-2003-00708
In support of her request, applicant submitted a copy of the former service member’s Death Certificate; a copy of their divorce decree; and copies of the former service member’s DD Form 214 (Armed Forces of the United States for Report of Transfer or Discharge), retirement order, dated 19 Feb 70, and documents associated with his retirement for disability. _________________________________________________________________ AIR STAFF EVALUATION: HQ AFPC/DPPTR reviewed this application and...
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.
AF | BCMR | CY2004 | BC-2004-00611
AFPC/DPPTR states there is no evidence of an Air Force error; however, to preclude a possible injustice, they recommend the member’s record be corrected to reflect that on 9 May 1989 he elected former spouse coverage based on a reduced level of retired pay. On 21 July 2004, this office received a letter from the former spouse’s counsel stating that on 27 July 1989, he sent a copy of the Divorce Decree and Property Settlement Agreement to the Air Force. ...
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...
AF | BCMR | CY2003 | BC-2003-00408
_________________________________________________________________ APPLICANT CONTENDS THAT: Her ex-husband told her he elected SBP at the time of his 1972 retirement and he agreed to continue coverage on her behalf in their divorce. If he had elected SBP coverage for her, he would have been eligible to change to former spouse coverage within the first year following their divorce. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE...
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A member who was married during the Plan’s initial enrollment period authorized by Public Law (PL) 92-425, which established the SBP, and failed to provide SBP coverage for that eligible spouse beneficiary, may not later elect coverage for that person, or another person of the same category, unless Congress authorizes an open enrollment. The applicant has provided no compelling evidence that justifies extending a fifth opportunity for him to provide SBP coverage for his wife. We took...
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AF | BCMR | CY2003 | BC-2003-01072
Microfiche entries reflect in March 1989, the applicant’s request to change voluntary former spouse coverage to spouse coverage was processed, naming his second spouse as the eligible spouse beneficiary. Evidence provided indicates the applicant chose to elect spouse SBP coverage in March 1989, changing it from former spouse coverage. The applicant has not provided any evidence that he submitted a termination request under Public Law 105-85, allowing members a one-year opportunity to...