Search Decisions

Decision Text

AF | BCMR | CY2006 | BC-2006-00868-2
Original file (BC-2006-00868-2.doc) Auto-classification: Approved


                                 ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-00868-
2
                                             INDEX CODE: 137.04
       XXX (DECEASED)                   COUNSEL:  NONE
         (XXX - APPLICANT)
                                             HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, she asks that her late
former husband’s records be changed to reflect he  elected  to  change
Survivor Benefit Plan (SBP) spouse coverage to former spouse based  on
a reduced level of retired pay.

_________________________________________________________________

STATEMENT OF FACTS:

Prior to his retirement on 1 Jul 92, the veteran elected  spouse  only
SBP coverage based on a reduced level of retired  pay;  the  applicant
concurred  in  his  election.  According  to  the  Qualified  Domestic
Relations Order (QDRO) [stipulation of property  settlement]  (Exhibit
A), they were divorced on 28 Mar 94  but  neither  party  submitted  a
valid election change during the required period (one year)  following
their divorce.  The retired pay data system at the Defense  Finance  &
Accounting Service - Cleveland Center (DFAS-CL) continued  to  reflect
the applicant’s name as the eligible spouse beneficiary.  There is  no
evidence the veteran  remarried  and  SBP  premiums  continued  to  be
deducted from his retired pay until his death on 3 Dec 05.  On  27 Mar
06, HQ AFPC/DPPRT requested the applicant submit a copy of  her  final
divorce decree, her marriage certificate if she had remarried and,  if
that marriage has been terminated, a  copy  of  that  divorce  decree.
However, the applicant only resubmitted the QDRO.  In  their  advisory
(Exhibit B), HQ AFPC/DPPRT indicated the  applicant’s  submission  was
incomplete but if she provided the necessary documents,  it  would  be
appropriate to correct the veteran’s record to reflect he  elected  to
change SBP spouse coverage to former  spouse  coverage  based  on  the
previous reduced level of retired pay, naming  the  applicant  as  the
eligible beneficiary.  Approval should be contingent  upon  recoupment
of applicable premiums.

In a telephone conversation with  the  applicant  on  22 Aug  06,  the
AFBCMR Staff explained the QDRO was not the finalized recorded divorce
decree and she needed to provide that document as well as a  notarized
affidavit indicating she had not remarried.  The  applicant  indicated
she would forward those documents, but  when  the  Board  convened  on
5 Oct 06, she had not responded and her appeal was denied.

For an accounting of  the  facts  and  circumstances  surrounding  the
applicant’s case and the rationale of  the  earlier  decision  by  the
Board, see the Record of Proceedings at Exhibit E.

On 2 Nov 06, the  AFBCMR  Staff  received  the  applicant’s  7 Sep  06
affidavit indicating she had not remarried after her  divorce  to  the
veteran.  Also provided was a copy  of  their  final  divorce  decree,
which awards a portion of the late veteran’s military  retirement  pay
to the applicant.

The applicant’s complete submission, with attachments, is  at  Exhibit
F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice to warrant  granting  the  applicant’s
requested relief. Before his retirement, the late veteran had  elected
SBP  benefits  for  the  applicant  based  on  reduced  retired   pay.
Apparently, however, neither the veteran nor the applicant submitted a
valid election change  within  the  one-year  window  following  their
divorce.  HQ AFPC/DPPRT had  indicated  in  their  advisory  that  the
applicant’s original appeal should be denied because her documentation
was incomplete.  However, they added approval would be appropriate  if
the applicant submitted her final  divorce  decree  and  an  affidavit
verifying she had not  remarried.   The  applicant  has  provided  the
appropriate  documents  and  we  believe,  in  order  to   avoid   the
possibility of an injustice, her late former husband’s records  should
be amended as indicated below.  The applicant  should  be  aware  that
approval and  finalization  of  her  case  would  be  contingent  upon
recoupment of any applicable premiums.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the VETERAN be corrected to show that, on  30 March  1994,
he elected to change his Survivor  Benefit  Plan  (SBP)  from  “spouse
coverage” to “former spouse coverage” based on  a  reduced  amount  of
retired pay, naming the APPLICANT as the eligible beneficiary.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 16 November 2006, under the provisions of AFI 36-
2603:

           Mr. Michael K. Gallogly, Panel Chair
           Mr. John B. Hennessey, Member
           Ms. Kathy L. Boockholdt, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence pertaining to AFBCMR No. BC-2006-00868-
2, was considered:

   Exhibit E.  Record of Proceedings, dated 17 Oct 06, w/atchs.
   Exhibit F.  Applicant's Affidavit, dated 7 Sep 06, [received
                             2 Nov 06] w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair


AFBCMR BC-2006-00868-2




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to WILLIAM F. McAFEE, XXXXXXX, be corrected to show
that, on 30 March 1994, he elected to change his Survivor Benefit Plan
(SBP) from “spouse coverage” to “former spouse coverage” based on a
reduced amount of retired pay, naming XXXX as the eligible
beneficiary.




                                             JOE G. LINEBERGER
                                             Director
                                             Air Force Review Boards
Agency

Similar Decisions

  • AF | BCMR | CY2006 | BC-2006-00868

    Original file (BC-2006-00868.doc) Auto-classification: Denied

    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 | CY2014 | BC 2014 02386

    Original file (BC 2014 02386.txt) Auto-classification: Denied

    In support of her request, the applicant provides a personal statement, copies of the former member’s death certificate, divorce decree, Separation and Property Settlement Agreement, marital status affidavit and various other documents associated with her request. None of the documents the applicant provided (Separation and Property Agreement or QDRO) had language that would entitle her to deem former spouse SBP coverage. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her attorney submitted...

  • AF | BCMR | CY2007 | BC-2006-02559

    Original file (BC-2006-02559.doc) Auto-classification: Denied

    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...

  • ARMY | BCMR | CY2008 | 20080011387

    Original file (20080011387.txt) Auto-classification: Approved

    The applicant requests, in effect, that his beneficiary for Survivor Benefit Plan (SBP) coverage be changed from his spouse to his former spouse and that premiums for this SBP coverage be deducted from his former spouse's entitlement to his retired pay. The evidence of record shows the applicant divorced his spouse of 23 years on 29 June 2005. The applicant has requested a change in beneficiary for SBP coverage of from spouse to former spouse to comply with his agreement with his former...

  • AF | BCMR | CY2007 | BC-2006-02725

    Original file (BC-2006-02725.doc) Auto-classification: Denied

    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...

  • ARMY | BCMR | CY2011 | 20110018472

    Original file (20110018472.txt) Auto-classification: Denied

    Counsel requests correction of the FSM's records to show he changed his SBP election from spouse to former spouse coverage. However, DFAS was unable to release any detailed information pertaining to the FSM's retired pay account due to the Privacy Act of 1974. l. ABCMR Docket Number AR2003083486, dated 27 March 2003, corrected the military records of a FSM to show that the FSM requested to change his SBP coverage to former spouse and children coverage and that his request was received and...

  • AF | BCMR | CY2006 | BC-2006-03676

    Original file (BC-2006-03676.doc) Auto-classification: Approved

    The member’s widow is eligible to receive an SBP annuity of $412, but she has not submitted an application to date. A complete copy of the Air Force evaluation is at Exhibit B. Applicant’s complete response, with attachments, is at Exhibit D. The widow of the service member indicated in a statement dated 25 Jan 06, that she recently completed and returned some forms sent to her by DFAS-CL.

  • AF | BCMR | CY2007 | BC-2007-01199

    Original file (BC-2007-01199.doc) Auto-classification: Approved

    Examiner’s Note: The law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage, even if they wished to voluntarily continue their former spouse’s eligibility. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In her response dated June 22, 2007, the applicant states her former spouse was very sorry and surprised when his request to name her his SBP beneficiary was denied. KATHLEEN...

  • AF | BCMR | CY2007 | BC-2005-02786

    Original file (BC-2005-02786.doc) Auto-classification: Denied

    DPPRT states there is no evidence the member submitted a request within the required time limit to voluntarily elect former spouse coverage on the applicant’s behalf. Records show that the member did not remarry and premiums continued to be deducted from his retired pay until his 2 Jul 96 death. 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 the Air Force office of primary responsibility and...

  • AF | BCMR | CY2006 | BC-2005-02849

    Original file (BC-2005-02849.doc) Auto-classification: Denied

    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...