RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-01902
INDEX CODE:137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election for
former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He nor his former spouse were aware of the one-year requirement to
submit an election for former spouse coverage following their divorce.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and N. were married on 14 September 1968. The
applicant, prior to his 1 November 1988 retirement, elected spouse and
child coverage based on a reduced level of retired pay. The applicant
and N. were divorced in March 1989. There is no indication in the
records that either the applicant or N. submitted a request to change
the SBP coverage from spouse to former spouse within the one-year time
period. The applicant and D. were married on 27 April 1991. There is
no evidence the applicant notified the Defense Finance and Accounting
Service (DFAS) of the change in his marital status, nor requested that
SBP spouse coverage be established on her behalf prior to the first
anniversary of their marriage. The applicant’s youngest child lost
eligibility to the SBP in July 1998.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR indicates since the request involves two potential SBP
beneficiaries, no recommendation is provided.
A complete copy of the Air Force evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 21 July 2004, the Board staff forwarded the applicant copies of
memorandums from HQ USAF/JAA which will be considered in the
processing of his application (Exhibit C).
On 28 July 2004, the Board staff forwarded the applicant a copy of the
HQ AFPC/DPPTR Air Force evaluation which will be considered in the
processing of his application (Exhibit D).
The applicant reviewed the Air Force evaluations and states the SBP
application was done in compliance of the divorce court proceeding
settlement. He further states the former spouse election was made
upon application for SBP and the premiums were being deducted from his
retirement pay. There is no confusion on the beneficiary as the
initial application for SBP was clear and has always listed N. as the
beneficiary (Exhibit E).
On 12 August 2004, the Board staff requested the applicant provide a
copy of the election he submitted for former spouse coverage (Exhibit
F).
On 21 August 2004, the applicant provided a copy of his September 1988
election for SBP (Exhibit G).
On 26 August 2004, the Board staff requested the applicant provided a
copy of his election for former spouse coverage following his divorce.
He did not respond (Exhibit H).
_________________________________________________________________
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. 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 USAF/JAA
and adopt their rationale as the basis for our conclusion the
applicant has not been the victim of an error or injustice. Neither
the servicemember nor the former spouse submitted a valid election
within the one-year period required by law to establish former spouse
coverage. We are not unsympathetic to the applicant’s dilemma and
that of his former spouse. Nonetheless, at this time, his former
spouse is not the legal beneficiary of the SBP election. However, if
the applicant’s current spouse provides a notarized statement
relinquishing her potential entitlement to the SBP annuity, the Board
would be willing to reconsider this request. 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-
2004-01902 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 10 Jun 04, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 25 Jun 04.
Exhibit C. Letter, AFBCMR, dated 21 Jul 04, w/atchs.
Exhibit D. Letter, AFBCMR, dated 28 Jul 04, w/atch.
Exhibit E. Letter, Applicant, undated, w/atchs.
Exhibit F. Letter, AFBCMR, dated 12 Aug 04.
Exhibit G. Letter, Applicant 21 Aug 04, w/atchs.
Exhibit H. Letter, AFBCMR, dated 26 Aug 04, w/atchs.
ROSCOE HINTON, JR.
Panel Chair
AF | BCMR | CY2004 | BC-2003-04283
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