RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02914
INDEX CODE:137.00
COUNSEL: None
XXXXXXX HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he elected former spouse coverage
under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The 85th Mission Support Squadron failed to conduct the required one-
on-one briefing for his retirement pay account and SBP prior to
retiring. Therefore, DFAS automatically elected spouse SBP coverage.
If provided the one-on-one briefing, his election for the SBP would
have been former spouse SBP.
In support of the application, the applicant submits AF IMT 330,
Records Transmittal/Request, a copy of his divorce decree, DD Forms
2656 and 2656-1, Data for Payment of Retired Personnel, SBP Briefing,
and marriage certificate.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and wife H__ were married on 3 August 1975, they
divorced on 5 July 1997 and an amended order pertaining to division of
military retired pay dated 22 September 1999, ordered that the
applicant designate wife H__, as the former spouse beneficiary to the
SBP. However, there is no evidence the finance center received a
request from wife H__ deeming that an SBP election be made on her
behalf during the first year following the date of the amended order.
The applicant and present wife N__ married on 13 September 1997 and he
retired from Keflavik NAS Iceland on 1 August 2005; however, he was
not briefed on the SBP nor did he complete a valid SBP election prior
to his retirement. Absent a valid election, DFAS - Cleveland Center
established spouse SBP coverage based on full retired pay to comply
with the law. The applicant and present wife N__ were subsequently
briefed by the Lakenheath RAF SBP counselor on the options and effects
of the SBP and the applicant elected former spouse coverage based on a
reduced level of retired pay (approximately $1647).
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR indicates that since the request involves two potential SBP
beneficiaries. No recommendation is provided.
AFPC/DPPTR’s complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 11 January 2006, the Board staff provided the applicant with copies
of advisory opinions from the Office of the Judge Advocate General on
similar cases which would be provided to the Board for consideration.
_________________________________________________________________
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. The applicant contends his
divorce decree requires him to provide SBP coverage for his former
spouse. We note neither the servicemember nor his former spouse 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. As a result, it appears that the former spouse has no
legal entitlement to the relief sought. Specifically, as noted by the
Chief, Administrative Law Division, Office of the Judge Advocate
General, in his memorandum of April 20, 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 requiring former
spouse SBP coverage, in the absence of any election making the former
spouse the annuity beneficiary, the current spouse becomes the
designated spouse beneficiary of the SBP annuity after one year of
marriage. Therefore, in the absence of a showing that the former
spouse is legally entitled to the relief sought or a waiver of
entitlement from the current spouse, we conclude the applicant has
failed to sustain his burden of establishing that he is the victim of
either an error or injustice.
4. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will
materially add to our understanding of the issue involved. Therefore,
the request for a hearing is not favorably considered.
_________________________________________________________________
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-
2005-02914 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 18 Aug 05, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 8 Nov 05.
Exhibit C. Letter, AFBCMR, dated 11 Jan 06, w/atchs.
KATHY L. BOOCKHOLDT
Panel Chair
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 | CY2006 | BC-2005-00707
His former spouse has been paying premiums for Air Force SBP since his retirement from civil service. In support of his appeal, the applicant has provided a copy of DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, a notarized statement giving the Air Force permission to give information to his former spouse about AFBCMR results, their divorce decree and a copy of his marriage certificate to his current spouse. ...
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 | 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 | 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...
He was retired from the Air Force before he married his former spouse, and against his request, she is receiving his SBP benefits. At that time he requested his former spouse be removed from the SBP and that the applicant be designated as the eligible spouse beneficiary when she gained eligibility. Applicant’s letter is at Exhibit D. On 24 March 2003, a copy of a USAF/JAG evaluation regarding former spouse requests for SBP coverage was forwarded to the applicant for review and comment.
AF | BCMR | CY2005 | BC-2005-01003
Neither the servicemember nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage. _________________________________________________________________ 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...
AF | BCMR | CY2006 | BC-2005-02657
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2005- 02657 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: YES MANDATORY CASE COMPLETION DATE: 27 FEBRUARY 2007 ___________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased former spouse’s records be corrected to show that he elected coverage for her under the Survivor Benefit Plan (SBP). Neither she nor her ex- husband was ever informed...
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 | CY2002 | BC-2002-03521
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-03521 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: NO ___________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband's records be corrected so that she may be eligible for a Survivor Benefit Plan (SBP) annuity. They state that Public Law (PL) 98-525 permitted former spouses to submit a request to deem an SBP election change...