RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-03568
INDEX CODE: 137.04
XXXXXXX COUNSEL: NONE
XXXXXXX HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 25 JUN 2007
___________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he elected coverage under the
Survivor Benefit Plan (SBP) for former spouse coverage.
___________________________________________________________________
APPLICANT CONTENDS THAT:
He never intended to stop his former spouse’s SBP coverage. He
assumed that the SBP would continue, not thinking that he needed to
make a change when he and his former spouse were divorced.
In support of his appeal, applicant submitted a copy of his
DD Form 214, Certificate of Release or Discharge from Active Duty,
dated 31 Mar 90; a copy of his divorce decree, dated 16 Dec 93;
DFAS-CL Form 5890/2, Designation of Beneficiary Information, dated
13 Jan 03, and DD Form 2656-1, Survivor Benefit Plan (SBP) Election
Statement for Former Spouse Coverage, 14 Dec 05.
Applicant’s complete submission is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
Applicant enlisted in the Regular Air Force on 21 Mar 66. He had
continuous honorable service until his retirement on 1 Apr 90. He
was credited with 24 years and 10 days of active duty service.
Prior to his 1 Apr 90 retirement, applicant initiated an SBP
election for spouse coverage only with a reduced level of retired
pay. He and his former spouse were divorced on 16 Dec 93. He
married again on 4 Aug 01.
___________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPRT reviewed this application and forwarded the request
without a recommendation because it involves two potential SBP
beneficiaries. The applicant was married, he elected spouse only
SBP coverage based on a reduced level of retired pay and the former
spouse concurred with the election prior to his 1 Apr 90
retirement. They were divorced on 16 Dec 93 and the divorce decree
was silent on the SBP. The applicant failed to submit a valid
election to voluntarily change spouse to former spouse coverage
during the required time limit following the divorce. Even though
the applicant reported on the DD Form 2656-1 that he is not
currently married, Defense Enrollment Eligibility Reporting System
(DEERS) records confirm that he remarried on 4 Aug 01. There is no
evidence that the marriage has terminated. The applicant did not
notify the finance center of the change in his marital status nor
request coverage be established on his new wife’s behalf. The SBP
data at the finance center continues to reflect his first wife date
of birth (14 Jun 43) as the eligible spouse beneficiary. Premiums
for SBP coverage continue to be deducted from the applicant’s
retired pay.
A complete copy of the evaluation is at Exhibit B.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of two advisory opinions on cases similar to the applicant’s
were forwarded to the applicant on 30 Jan 06 for review and comment
within 30 days. As of this date, no response has been received by
this office (Exhibit C).
___________________________________________________________________
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. The applicant submitted a request after the one-year
anniversary of his divorce to have his election changed to former
spouse only coverage. The record reflects the applicant remarried
on 4 Aug 01, and his former spouses’ date of birth is listed as the
current beneficiary. Since it appears that there are two eligible
spouse beneficiaries, based on HQ USAF/JAG opinions, the Board is
without authority to act in behalf of one beneficiary, when that
correction would take away the benefit from another. In similar
cases, the board has reconsidered applications where the current
spouse has relinquished her entitlement as beneficiary, thereby
allowing the former spouse to be the eligible beneficiary. If the
applicant’s current spouse provides a notarized statement
relinquishing her potential entitlement to the SBP annuity, the
Board may be willing to reconsider the applicant’s appeal in
consideration of the new evidence. In the absence of persuasive
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-2005-03568 in Executive Session on 15 June 2006, under the
provisions of AFI 36-2603:
Mr. Michael K. Gallogly, Panel Chair
Ms. Renee M. Collier, Member
Ms. Marcia Jane Bachman, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 16 Nov 05, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPRT, dated 6 Jan 06.
Exhibit C. Letter, AFBCMR, dated 30 Jan 06, w/atchs.
MICHAEL K. GALLOGLY
Panel Chair
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