RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02726
INDEX CODE:137.00
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 4 MAR 07
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former late-husband’s records be corrected to reflect he made a
timely election for former spouse coverage under the Survivor Benefit
Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former late-husband agreed that she should receive the SBP
annuity. Also, their divorce decree directed her former-late husband
make the necessary arrangements to ensure that she would receive the
SBP. He failed to do so prior to his death.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
At the time of the servicemember’s retirement on 1 April 1976, he and
the applicant were married and he declined to elect spouse coverage
under the SBP. The servicemember and the applicant were divorced
28 January 1992. The servicemember married B. on 6 May 1995. He died
on 11 April 2005.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states the laws that controlled SBP precluded a married
servicemember, who declined spouse coverage at the time of retirement,
from providing SBP former spouse coverage following divorce. The
servicemembers may provide former spouse coverage during an authorized
open enrollment. Retired servicemembers were permitted to elect
former spouse coverage during the one-year open enrollment periods
authorized by Public Laws (PLs) 101-189 (1 April 1992 through 31 March
1993) and 105-261 (1 March 1999 through 29 February 2000). The
enrollment packets, advising retired servicemembers of the opportunity
to make an election for SBP as well as the forms, were included in the
February 1992 and January 1999 editions of the Afterburner, News for
USAF Retired Personnel. These issues and others published during
those periods were sent to the correspondence address the
servicemembers had provided to the finance center and it contained
information on points of contacts for retirees to use to gain
additional information.
AFPC/DPPRT further states the law at the time of the servicemember’s
retirement did not require the spouse to concur with the SBP election.
AFPC/DPPRT can neither confirm nor deny the applicant’s claim of non-
notification; however, her claim would have terminated upon their
divorce. Although their divorce decree mentioned the SBP, the spouse
coverage had to have been elected on the applicant’s behalf as the
servicemember’s wife in order for him to be eligible to elect former
spouse coverage. SBP is similar to commercial life insurance in that
an individual must elect to participate and pay the required premiums
in order to be covered. Therefore, they recommend the requested
relief be denied.
A complete copy of the Air Force evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 October 2005, a copy of the Air Force evaluation was forwarded to
applicant, for review and response. As of this date, no response has
been received by this office.
_________________________________________________________________
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 an error or an 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 the Air
Force and adopt its rationale as the basis for our conclusion that the
applicant has not been the victim of an error or an injustice. The
servicemember initially declined to elect SBP spouse coverage prior to
his retirement. Therefore, based upon the laws that govern SBP
coverage following divorce, it appears the provisions pertaining to
former spouse SBP coverage in the divorce decree are unenforceable.
Nonetheless, the servicemember had several opportunities to elect SBP
coverage for the applicant during the authorized open enrollment
periods and failed to do so. In view of this, we find no evidence
that it was ever the intent of the servicemember to provide coverage
for the applicant. 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-
2005-02726 in Executive Session on 10 February 2006, under the
provisions of AFI 36-2603:
Ms. Kathy L. Boockholdt, Panel Chair
Ms. Renee M. Collier, Member
Ms. Janet I. Hassan, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Aug 05, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPRT, dated 3 Oct 05.
Exhibit C. Letter, SAF/MRBR, dated 7 Oct 05.
KATHY L. BOOCKHOLDT
Panel Chair
AF | BCMR | CY2006 | BC-2005-02849
There is no evidence the servicemember submitted a valid election to voluntarily change the SBP coverage from spouse to former spouse within the required one year time limit following their divorce. The servicemember married M. on 23 September 1994, and the servicemember did not request that SBP coverage be established on her behalf. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 November 2005, the Board staff forwarded...
AF | BCMR | CY2006 | BC-2005-02913
The servicemember did not elect former spouse coverage on the applicant’s behalf. Counsel further states, based on the facts and the personal statement of the applicant, the Board should consider the benefit of doubt and find in favor of the applicant (Exhibit D). We do not take issue with the applicant’s contention that her divorce decree ordered her deceased former husband to provide former spouse coverage for her under the SBP, but he did not do so.
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 | CY2005 | BC-2005-00415
Even though the law in effect at the time of the applicant’s divorce did not allow retired members to provide former spouse SBP coverage, the member could have voluntarily elected former spouse SBP coverage on the applicant’s behalf when he applied for commencement of his retired pay, but he did not. A member, who has an eligible former spouse at the time of retirement, and does not elect SBP former spouse coverage, may not later elect that option unless Congress authorizes an open...
AF | BCMR | CY2005 | BC-2005-01319
On 17 October 1998, PL 105-261 established an SBP open enrollment from 1 March 1999 through 29 February 2000 for servicemembers who were not participating at the fullest extent and a non-participant could elect coverage. The applicant’s records reflect his SBP coverage was terminated under PL 99-145 within the first year of his marriage to D. PL 105-261 did not prohibit servicemembers from making an election during open enrollment if they had not resumed spouse coverage when they remarried....
AF | BCMR | CY2007 | BC-2006-03512
He was not aware that he had to file for a change in spouse coverage. The parties divorced on 26 Nov 86 and the divorce decree ordered that the member continue SBP on the former spouse’s behalf. _________________________________________________________________ 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...
AF | BCMR | CY2006 | BC-2006-00868
If the applicant provides the necessary documents, it would be appropriate to correct the member’s record to reflect on 29 Mar 94 (or date verified by final decree), he elected to change SBP spouse to former spouse coverage based on the previous reduced level of retired pay, naming the applicant as the eligible beneficiary. A complete copy of the HQ AFPC/DPPRT evaluation, with attachment, is provided at Exhibit B. ________________________________________________________________ The...
AF | BCMR | CY2007 | BC-2006-02725
Applicant’s counsel requests copies of all documents by which the Air Force determined that her client gave inadequate notice of her entitlement to the SBP, of which benefits were awarded her (and paid for by her) pursuant to the divorce decree. Apparently the Air Force determined they received adequate notice to pay her client her portion of the court-ordered military retirement benefits, it appears incongruous for the Air Force now to take the position that such notice was inadequate to...
AF | BCMR | CY2007 | BC-2006-02559
The parties divorced on 7 July 1998, and the court ordered the former member to maintain the SBP coverage on the applicant’s behalf; however, neither party submitted a valid election change during the required time. Specifically, as noted by the Chief, Administrative Law Division, Office of the Judge Advocate General, in his memorandum of 20 April 2004, on the subject, there are a number of court decisions by both state and federal judiciaries that have held that, despite the divorce decree...
AF | BCMR | CY2007 | BC-2006-01570
He told her that her husband was making SBP payments and therefore she should have been receiving an annuity after his death. DPPTR states there is no basis in law to waive the two-year survival requirement; however, if the Board’s decision is to grant relief, the record could be corrected to show the member elected spouse only SBP coverage based on full-retired pay on 27 July 1977, prior to the first marriage anniversary. As of this date, this office has received no response (Exhibit D).