RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-00611
INDEX CODE:137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show he elected former spouse coverage under
the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
After his divorce, he mailed his divorce decree to the Denver office but it
was returned unopened. By the time he received his returned mail, it was
more than a year after his divorce. He remarried on 1 September 1990 and
rather than have his SBP go to no one, he elected to have his present wife
listed as the beneficiary. Until recently, he assumed that if he should
die, the SBP beneficiary could be easily changed. His attorney has
recommended that he do everything possible to get his records corrected so
his family will avoid an expensive legal case.
In support of his appeal, applicant submits a personal statement cosigned
by his current spouse, a copy of his divorce decree, a copy of his retiree
account statement and a copy of his SBP Election Statement dated 1 March
2004. The applicant’s submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The Military Personnel Database reflects the applicant retired effective 1
April 1974 in the grade of lieutenant colonel.
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 at Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states that the applicant and former spouse were married on 25
June 1955 and he elected spouse and child coverage based on a reduced level
of retired pay prior to his 1 April 1974 retirement. The parties’ divorce
was finalized on 8 May 1989 and the property agreement, incorporated in the
divorce decree, contained the applicant’s agreement to designate the former
spouse as his beneficiary under the SBP. However, neither party submitted
a valid former spouse election and spouse premiums continued to be deducted
from the applicant’s retired pay until December 1989 when the finance
center became aware of the divorce, retroactively suspended spouse coverage
and refunded overpaid premiums. 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.
AFPC/DPPTR evaluation, with attachments, is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 18 June 2004, a copy of the Air Force evaluation and HQ USAF/JAA legal
reviews were sent to the applicant for review and comment.
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. As he recalls, the
request that the applicant’s beneficiary under the SBP shall be the former
spouse was favorably received. A copy of the counsel’s letter 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 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 injustice. We took notice of the applicant's complete
submission in judging the merits of the case. Notwithstanding the opinions
rendered by HQ USAF/JAA, after thoroughly reviewing the circumstances of
this case, it is the opinion of the Board that the former spouse should
receive the SBP annuity at the reduced level of retired pay to comply with
the divorce decree awarding the asset to her by the court. We note the
current spouse has provided a signed statement of agreement relinquishing
her entitlement to the SBP. We are persuaded it was the applicant’s intent
to provide his former spouse the SBP annuity and that his current spouse is
fully aware she is relinquishing her entitlement to the annuity.
Therefore, the Board accepts the opinion and recommendation from the Air
Force and recommends the applicant’s records be corrected to the extent
indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT, be corrected to show that on 9 May 1989, he changed his
Survivor Benefit Plan (SBP) election from spouse to former spouse coverage
based on a reduced level of retired pay, naming XXXXXXXXX as the former
spouse beneficiary.
_________________________________________________________________
The following members of the Board considered this application in Executive
Session on 20 July 2004 and 26 July 2004, under the provisions of AFI 36-
2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Mr. Joseph A. Roj, Member
Mr. Michael J. Novel, Member
The following documentary evidence for AFBCMR Docket Number 04-00611 was
considered:
Exhibit A. DD Form 149, dated 17 Feb 04, w/atchs.
Exhibit B. Letter, AFPC/DPPTR, dated 17 Mar 04.
Exhibit C. Letter, AFBCMR, dated 18 Jun 04, w/atchs.
Exhibit D. Letter, Former spouse’s counsel, dated 16 Jul 04,
w/atchs.
ROSCOE HINTON JR.
Panel Chair
AFBCMR BC-2004-00611
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 xxxxxxxxxxxxx, be corrected to show that on 9 May 1989, he
changed his Survivor Benefit Plan (SBP) election from spouse to former
spouse coverage based on a reduced level of retired pay, naming XXXXXXXX as
the former spouse beneficiary.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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