RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-01019
INDEX CODE: 107.00
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 26 JUNE 2006
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her late husband’s records be corrected to show that he elected former
spouse coverage under the Survivor Benefit Program (SBP) as required by
court order.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her late former spouse was required by court order to elect former spouse
coverage under SBP; however, he did not. The Defense Finance and
Accounting Service-Cleveland Center (DFAS-CL) has refused to process her
application for annuity denying her rights under the divorce decree.
In support of the application, the applicant submits a certified copy of
the former member’s death certificate, divorce decree, letter from DFAS-CL,
Verification for Survivor Annuity form, and designation of beneficiary
forms. The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former member and the applicant were married on 27 October 1961 and he
elected spouse only SBP coverage based on full retired pay prior to his 1
December 1979 retirement. (Note: At the time of the decedent’s election
for spouse coverage, the finance center incorrectly entered 5 June 1940
vice 5 Jul 1940 as the applicant’s date of birth [DOB]) The parties
divorced on 28 July 1986 and the court ordered that SBP coverage continue
on the applicant’s behalf. However, neither party submitted a valid
election change during the required time limit. The member remarried on 22
August 1986. His retired pay records erroneously continued to reflect the
applicant’s DOB as the eligible spouse beneficiary and SBP premiums were
deducted from his retired pay following their divorce and his remarriage.
In July 1996, DFAS-CL became aware of the change in the member’s marital
status when he submitted a request to change his arrears of pay (AOP)
beneficiary to current spouse. Absent a valid election for former spouse
coverage, DFAS-CL also updated the SBP beneficiary to reflect his new wife.
The former member died on 27 May 04 and his widow is receiving a monthly
annuity of $644.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR states that based on guidance issued by the AFBCMR on 18
March 2004, they are forwarding this request without a recommendation
because it involves two potential SBP beneficiaries. DPPTR’s evaluation,
with attachments, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 June 2005, the Board staff forwarded the applicant a copy of the Air
Force evaluation and memorandums from HQ USAF/JAA for review and comment
(Exhibit D). In her response dated 20 July 05, the applicant reiterated her
earlier contentions (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.
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 recommendation of HQ USAF/JAA 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 injustice.
Neither the applicant nor the former spouse submitted a valid election
within the one-year period required by law to establish former spouse
coverage. In addition, the AFBMCR cannot rule on a dispute between two
claimants to a benefit that only one of them can receive. Furthermore, it
is not appropriate for the Board to adjudicate such a dispute since that
task is properly left to the courts. However, if the former member’s widow
submits a notarized statement relinquishing her entitlement to the SBP, the
Board may be willing to reconsider the applicant’s appeal in consideration
of this evidence. In view of the foregoing, 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 this application in Executive
Session on 27 October 2005, under the provisions of AFI 36-2603:
Mr. Michael K. Gallogly, Panel Chair
Ms. Kathleen F. Graham, Panel Member
Mr. Alan A. Blomgren, Panel Member
The following documentary evidence was considered in connection with AFBCMR
Docket Number BC-2005-01019.
Exhibit A. DD Form 149, dated 26 Feb 05, w/atchs.
Exhibit B. Applicant’s Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 20 May 2005.
Exhibit D. Letter, AFBCMR, dated 7 June 05 w/atchs.
Exhibit E. Applicant’s Rebuttal, dated 20 July 05.
MICHAEL K. GALLOGLY
Panel Chair
AF | BCMR | CY2005 | BC-2005-02243
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2005-02243 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: NO MANDATORY CASE COMPLETION DATE: 16 NOVEMBER 2006 _________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband’s records be corrected to show that he elected former spouse coverage under the Survivor Benefit Program (SBP) at the time of his retirement. However, there is...
AF | BCMR | CY2005 | BC-2005-01655
A week after the divorce from her husband, she took the divorce decree to Offutt AFB to finish the paperwork for DFAS for the annuity of her former husband’s retirement. In support of her application, applicant provided personal statements from both her and her daughter, copies of her 2 Jun 01 letter to DFAS, a 2 Jun 01 letter to her former husband, their divorce decree, a certified letter to the Director of DFAS from her attorney, her former husband’s death certificate, and his retirement...
AF | BCMR | CY2008 | BC-2003-03852A
There was no evidence in the servicemember’s records to indicate that either the servicemember or the applicant submitted an election to change the SBP coverage from spouse to former spouse. Counsel's complete response is at Exhibit L. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: DFAS-CL/DGM states the applicant relies on the Holt and King cases to support her request for award of an SBP annuity. The King case is also of little impact...
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 | CY2006 | BC-2006-03676
The member’s widow is eligible to receive an SBP annuity of $412, but she has not submitted an application to date. A complete copy of the Air Force evaluation is at Exhibit B. Applicant’s complete response, with attachments, is at Exhibit D. The widow of the service member indicated in a statement dated 25 Jan 06, that she recently completed and returned some forms sent to her by DFAS-CL.
AF | BCMR | CY2005 | BC-2005-02487
He was informed the request for change had to be submitted in writing and his former spouse would be required to initiate the election form. In support of the application, the applicant submits a copy of a letter from DFAS, a copy of his letter to DFAS, a copy of his divorce decree, and the original SBP Election Statement of Former Spouse Coverage form. MICHAEL K. GALLOGLY Panel Chair AFBCMR BC-2005-02487 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation...
AF | BCMR | CY2006 | BC-2006-00962
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2006-00962 COUNSEL: NONE HEARING DESIRED: NO MANDATORY CASE COMPLETION DATE: 31 SEP 07 _________________________________________________________________ APPLICANT REQUESTS THAT: Applicant is the ex-spouse of the deceased former servicemember, who requests her former late husband’s records be corrected to reflect he made a timely election for former spouse coverage under the...
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 | CY2006 | BC-2005-00973
___________________________________________________________________ STATEMENT OF FACTS: The Air Force indicated the member and the applicant were married on 10 Aug 74 and the member elected spouse and child coverage based on full retired pay prior to his 1 Jul 97 retirement. NOVEL Panel Chair MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR) SUBJECT: AFBCMR Application of [APPLICANT] I have carefully reviewed the evidence of record and...
AF | BCMR | CY2005 | BC-2005-01507
However, even though he provided a written request dated 4 May 1983 to change his coverage from spouse to former spouse, the finance center did not make the change because Public Law 98-94 authorizing retirees to elect SBP coverage for their former spouses did not take effect until 24 September 1983 and because his statement was notarized on 28 May 1983, 24 days after the date it was signed. When Air Force retired pay accounts were transferred from Denver to the Cleveland pay center, the...