RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01092
INDEX CODE: 137.04
XXXXXXX COUNSEL: NONE
(DECEASED)
HEARING DESIRED: YES
MANDATORY CASE COMPLETION DATE: 12 OCTOBER 2007
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased former husband’s records be corrected to show he elected
former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former husband did not comply with a court order directing him to
enroll her in SBP. She states if he had complied with the court and
enrolled her within 30 days after the divorce became final she would
be covered.
In support of her request, applicant provided copies of her former
husband’s Death Certificate, Separation Agreement, the Stipulation to
Amend Martial Settlement Agreement, and the order to Dissolution of
Marriage.
The complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former member and the applicant were married 4 February 1950.
Documents provided by the Defense Finance and Accounting Service,
Cleveland Center (DFAS-CL), reflect the member stopped SBP coverage on
19 September 1994 on the applicant, and started new coverage on his
new spouse who is currently receiving a monthly SBP annuity. He
retired 1 August 1969 in the grade of Master Sergeant and died 30
January 2006.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRT indicates that since the request involves two potential SBP
beneficiaries. No recommendation is provided (Exhibit B).
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 12 July 2006, the board staff forwarded the applicant copies of the
memorandums from HQ USAF/JAG and HQ USAF/JAA which will be considered
in the processing of her application (Exhibit C).
On 12 July 2006, a copy of the Air Force evaluation was forwarded to
the applicant for review and comment within 30 days. As of this date,
this office has received no response (Exhibit D).
_________________________________________________________________
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;
however, we agree with the opinion and recommendation of HQ USAF/JAA
and adopt the rationale expressed as the basis for our decision that
the applicant has failed to sustain her burden that she has suffered
either an error or injustice. Neither the applicant nor the former
member submitted a valid election within the one-year period required
by law to establish former spouse coverage. Although the AFBMCR has
the authority, it should not rule on a dispute between two claimants
to a benefit that only one of them can receive. Furthermore, it is
not appropriate for the Board to adjudicate such a dispute since that
task is more properly left to the courts. However, if the former
member’s current spouse submits a notarized statement relinquishing
her entitlement to the SBP, the Board may be willing to reconsider the
applicant’s appeal in consideration of this evidence. In view of the
foregoing, we find no compelling basis to recommend granting the
relief sought in this application.
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 issues 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 Docket Number BC-2206-
01092 in Executive Session on 5 October 2006, under the provisions of
AFI 36-2603:
Mr. Michael K. Gallogly, Panel Chair
Mr. John B. Hennessey, Member
Ms. Kathy L. Boockholdt, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 23 March 2006, w/atchs.
Exhibit B. Letter, AFPC/DPPTR, dated 26 May 2006.
Exhibit C. Letter, AFBCMR, dated 12 July 2006, w/atchs.
Exhibit D. Letter, AFBCMR, dated 12 July 2006.
MICHAEL K. GALLOGLY
Panel Chair
DEPARTMENT OF THE AIR FORCE
WASHINGTON DC
[pic]
Office of the Assistant Secretary
AFBCMR
1535 Command Dr, EE Wing, 3rd Flr
Andrews AFB MD 20762-7002
XXXXXXXl
XXXXXXX
XXXXXXX
Dear XXXXXXX
Reference your application, AFBCMR BC-2006-01092, submitted
under the provisions of AFI 36-2603 (Section 1552, 10 USC).
After careful consideration of your application and military
records, the Board determined that the evidence you presented did not
demonstrate the existence of material error or injustice.
Accordingly, the Board denied your application.
You have the right to submit newly discovered relevant evidence
for consideration by the Board. In the absence of such additional
evidence, a further review of your application is not possible.
BY DIRECTION OF THE PANEL CHAIR
GREGORY E.
JOHNSON
Chief
Examiner
Air Force Board for
Correction
of Military
Records
Attachment:
Record of Board Proceedings
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