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.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her divorce decree states she will remain the beneficiary for the SBP.
In support of her application the applicant submits a copy of her divorce
decree, a copy of her marriage certificate, and a copy of her late ex-
husband’s death certificate.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former servicemember and spouse were married on 3 October 1953 and he
elected spouse and child SBP coverage based on a reduced level of retired
pay prior to his 1 May 1973 retirement. The parties divorced on 19
September 1986 and the property settlement agreement, incorporated in the
divorce decree, awarded the SBP to the applicant. However, there is no
evidence the applicant submitted a deemed election within the required time
limit, nor that the member elected former spouse coverage on her behalf.
Defense Enrollment Eligibility Reporting System (DEERS) records show the
member remarried on 24 June 1997, but he did not request that the Defense
Finance and Accounting Service – Cleveland Center (DFAS-CL) establish SBP
coverage on her behalf. The youngest child lost eligibility in June 1996
due to age. The member’s retired pay records erroneously reflected the
applicant’s date of birth (10 January 1935) as the eligible spouse
beneficiary and SBP premiums were deducted from his retired pay until his
16 June 2005 death. The member’s widow is eligible to receive an SBP
annuity of $714, but payment has not yet begun.
_________________________________________________________________
AIR FORCE EVALUATION:
Based on guidance by the AFBCMR on 18 March 2004, DPPTR is forwarding the
request without a recommendation because it involves two potential SBP
beneficiaries (Exhibit C).
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 September 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 the applicant reiterates her claim
that she is the eligible beneficiary. She also states her date of birth is
correct, and provided a copy of her birth certificate (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-2005-02243.
Exhibit A. DD Form 149, dated 5 Jul 05, w/atchs.
Exhibit B. Applicant’s Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 18 Aug 2005.
Exhibit D. Letter, AFBCMR, dated 7 Sep 05 w/atchs.
Exhibit E. Applicant’s Rebuttal, dated 22 Sep 05 w/atch.
MICHAEL K. GALLOGLY
Panel Chair
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