RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-02029
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 did not understand that an election for former spouse coverage
needed to be submitted within one-year following the divorce.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and C. were married on 4 July 1943. The applicant
elected Reserve Component SBP (RCSBP) spouse only coverage based on
full retired pay when he became eligible to receive retired pay (17
August 1979) except for attaining age 60. The applicant began
receiving retired pay on 4 December 1981. The applicant and C. were
divorced on 12 November 1991 and the marital settlement agreement,
incorporated in the divorce decree, ordered that the applicant
continue the SBP coverage on C’s behalf. There is no indication in
the records that either the applicant or C. 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 18 September
1993. There is no indication the applicant notified the Defense
Finance and Accounting Service (DFAS) of the change in his marital
status.
_________________________________________________________________
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 B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 21 and 28 July 2004, the Board staff forwarded the applicant a copy
of memorandums from HQ USAF/JAA and AFPC/DPPTR, which will be
considered in the processing of his application (Exhibit C & D).
_________________________________________________________________
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-
2004-02029 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 14 Jun 04, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 1 Jul 04.
Exhibit C. Letter, AFBCMR, dated 21 Jul 04, w/atchs.
Exhibit D. Letter, AFBCMR, dated 28 Jul 04, w/atch.
ROSCOE HINTON, JR.
Panel Chair
AF | BCMR | CY2004 | BC-2004-01902
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 26 August 2004, the Board staff requested the applicant provided a copy of his election for former spouse coverage following his divorce. Exhibit B.
AF | BCMR | CY2004 | BC-2004-00978
_________________________________________________________________ APPLICANT CONTENDS THAT: The divorce decree ordered the servicemember to provide former spouse coverage for her under the SBP, but neither the servicemember nor she was aware of the one-year requirement to submit an election for former spouse coverage. Neither the servicemember nor the applicant made an election for former spouse coverage within one-year following their divorce. The applicant reviewed the Air Force...
AF | BCMR | CY2004 | BC-2003-04283
There is no indication in the records that either the applicant or J. submitted a request to change the SBP coverage from spouse to former spouse within the one-year time period. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 21 July 2000, he elected under the Survivor Benefit Plan to change his coverage from “spouse” to “former...
AF | BCMR | CY2004 | BC-2003-03404
There are two mechanisms provided by law for changing SBP coverage from spouse to former spouse, and both must be exercised within the first year following the divorce. The servicemember can file an election change or the former spouse can request that the change be made on their behalf. A complete copy of the Air Force evaluation is at Exhibit B.
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...
AF | BCMR | CY2004 | BC-2003-00516
There are two mechanisms provided by law for changing SBP coverage from spouse to former spouse, and both must be exercised within the first year following the divorce. DPPTR recommends the applicant’s records be corrected to reflect he elected to change his SBP coverage from spouse to former spouse coverage based on reduced retired pay, naming B. as former spouse beneficiary A complete copy of the Air Force evaluation is at Exhibit B. The applicant submitted a notarized statement dated 22...
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 | CY2004 | BC-2004-00293
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. 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...
AF | BCMR | CY2004 | BC-2004-01282
No recommendation is provided. A complete copy of the Air Force evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 18 June 2004, the Board staff forwarded the applicant copies of memorandums from HQ USAF/JAG/JAA which will be considered in the processing of his application (Exhibit C).
AF | BCMR | CY2004 | BC-2004-02024
SBP premium were deducted from the servicemember’s retired pay until February 2003 when the finance center suspended the spouse portion of his SBP. 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. 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...