RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-03625
INDEX CODE: 137.01
COUNSEL: NONE
XXXXXXX HEARING DESIRED: NOT INDICATED
MANDATORY CASE COMPLETION DATE: 3 JUNE 2007
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased husband’s records be corrected to show she is entitled to
a Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She has not received her retirement allotment pay. She would
appreciate the Board’s attention on this matter.
In support of her application, applicant submits a copy of her
marriage license, deceased husband's certificate of death, and a
letter from AFPC/DPPRT.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and former member were married on 28 November 1963.
Defense Finance and Accounting Service (DFAS) records indicate the
former member elected spouse and child SBP coverage based on full
retired pay prior to his 1 September 1974 retirement. DPPRT is unable
to verify the former member’s marital status after April 1983;
however, finance center records show the spouse’s portion of the SBP
was suspended at that time. The former member died on 24 January 1985
and the death certificate reflects the former member’s marital status
as divorced.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR recommends denial due to incomplete documentation. However,
in the event the applicant provides the required document, an amended
death certificate, it would be appropriate to correct the decedent’s
records to show the applicant was the eligible spouse beneficiary upon
his death.
An SBP election is valid as long as the beneficiary remains eligible.
A spouse’s eligibility to receive an SBP annuity terminates upon
divorce. However, the laws provide two mechanisms for changing spouse
to former spouse coverage. Both must be exercised within the first
year following divorce: the retiree may file an election change, or
the former spouse may request the retiree be deemed to have made such
a change on his or her behalf. In the latter case, the former spouse
must provide documentation that the member agreed, or the court
ordered the member to establish former spouse coverage. If neither the
member nor former spouse requests the election change within the one-
year eligibility period, former spouse coverage may not be established
thereafter.
After receiving the petitioner’s application, DPPTR pointed out that
the member’s death certificate reflected he was divorced at the time
of his death and she needed to clarify and properly document their
marital status. However, to date, the applicant has not provided an
amended death certificate. Furthermore, the applicant does not explain
delaying over twenty years before she sought correction, or any
justification for waiving her claim from the six-year statute of
limitations. Since favorable consideration must be based on an
applicant being legally married to the member on the date of death, to
provide relief absent marital status verification is not justified.
AFPC/DPPTR complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the evaluation was forwarded to the applicant on 17
February 2006 for review and comment within 30 days. 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 injustice. After a thorough review of the
evidence of record and applicant’s submission, we are not persuaded
that the deceased member’s records should be altered so the applicant
would receive an SBP annuity. In this regard, we note the applicant
has been requested to provide an amended death certificate clarifying
and properly documenting her marital status with respect to the
deceased member. To date, the applicant has not provided an amended
death certificate. We therefore agree with the recommendation of the
Air Force and adopt the rationale expressed as the basis for our
decision that the applicant has failed to sustain her burden of having
suffered either an error or an injustice. In view of the above and
absent persuasive evidence to the contrary, we find no compelling
basis to recommend granting the relief sought.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of probable 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 Docket Number BC-2005-
03625 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 31 Oct 05, w/atchs.
Exhibit B. Letter, HQ ARPC/DPS, dated 10 Feb 06.
Exhibit C. Letter, SAF/MRBR, dated 17 Feb 06.
MICHAEL K. GALLOGLY
Panel Chair
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