RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-00293
INDEX CODE:137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former late-husband’s records be corrected to reflect he elected
former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The divorce decree ordered the servicemember to maintain the applicant
as the beneficiary for SBP.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and the servicemember were married on 15 July 1961. The
servicemember elected, prior to his 1 March 1978 retirement, spouse
and child coverage under the SBP based on full retired pay. The
servicemember and the applicant were divorced on 18 December 1987.
The divorce decree ordered the servicemember to maintain the applicant
as the beneficiary on his military pension with a full, complete and
sole right of survivorship. Neither the servicemember nor the
applicant submitted a valid election for former spouse coverage within
one year following their divorce. SBP premiums were deducted from the
servicemember’s retired pay until June 1989 when the Defense Finance
and Accounting Service (DFAS) retroactively suspended the coverage and
issued a refund of the premiums. The servicemember married C. on 3
July 1990. He died on 4 January 1996. His widow (C.) is receiving
the annuity.
The applicant submitted an earlier application requesting her former
late-husband’s records be corrected to reflect he elected former
spouse coverage on her behalf. DPPTR based on previous guidance from
the Board returned the application without action on 24 February 2004
and recommended the applicant seek correction through civil action.
(Exhibit B).
However, upon further review of the request, the applicant’s case was
reopened.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR indicates that since the request involves two potential SBP
beneficiaries, no recommendation is provided.
A complete copy of the Air Force evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 12 August 2004, the Board staff forwarded the applicant copies of
memorandums from HQ USAF/DPPTR and HQ USAF/JAA which will be
considered in the processing of her application (Exhibit D).
The applicant reviewed the Air Force evaluations and provided copies
of documents indicating the servicemember was not complying with the
established court order (Exhibit E).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
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 filed.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. We do not take issue with the
applicant’s contention her divorce decree ordered her deceased former
husband to provide former spouse coverage for her under the SBP, but
he did not do so. This is indeed regrettable. However, since neither
the applicant nor her deceased former husband took the necessary
actions to ensure she was provided former spouse coverage under the
SBP within the one-year period in which they could have done so, it
appears that the applicant has no legal entitlement to the relief
sought. It appears by operation of law, the widow of the deceased
former member is his legal beneficiary and we do not find the failure
of the deceased former member to comply with the terms of the divorce
decree sufficient to perpetuate an injustice against the current
spouse. This is especially true since the applicant could have timely
taken the necessary actions to ensure she would get the coverage
agreed to in the divorce decree without the assistance or concurrence
of her former deceased husband. We are not unsympathetic to her
dilemma. However, in the absence of a showing the applicant is
legally entitled to the relief sought or a waiver of entitlement from
the current spouse, we conclude she has failed to sustain her burden
of establishing she is the victim of either 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 BC-
2004-00293 in Executive Session on 24 September 2004, under the
provisions of AFI 36-2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Mr. Michael K. Gallogly, Member
Ms. Patricia D. Vestal, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Apr 02, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 24 Feb 04, w/atchs.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 16 Jul 04.
Exhibit D. Letter, AFBCMR, 12 Aug 04, w/atchs.
Exhibit E. Applicant’s Response, undated.
ROSCOE HINTON, JR.
Panel Chair
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