RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01562
INDEX CODE: 137.04
XXXXXXX COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 23 NOVEMBER 2006
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show he elected former spouse coverage
under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was not aware of the one year time period to make a correction to
his SBP.
In support of the application, the applicant provided a copy of his
Divorce Judgment and DD Form 2656-1, SBP elections statement for
former spouse coverage.
The complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former spouse and the applicant divorced 15 December 1999. The
divorce judgment ordered the SBP to be continued for his former
spouse. In December 2003, he married his current spouse and by law,
after one year, if either the applicant or former spouse does not
submit a valid former election then the current wife automatically
becomes entitled to the applicant’s SBP. The applicant continues to
have SBP deducted from his retired pay and his account still reflects
his former spouse as the eligible beneficiary.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR indicates since the request involves two potential SBP
beneficiaries. No recommendation is provided (Exhibit B).
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 3 August 2006, the board forwarded the applicant copies of the
memorandums from HQ USAF/JAA and HQ AFPC/DPPRT which will be
considered in the processing of her application (Exhibit C.)
A copy of the Air Force evaluation was forwarded to the applicant on 3
August 2006 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 his burden that he has suffered
either an error or injustice. Neither the applicant nor the former
spouse 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 applicant’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.
_________________________________________________________________
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-
01562 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 4 March 2004, w/atchs.
Exhibit B. Letter, AFPC/DPPTR, dated 5 July 2006.
Exhibit C. Letter, AFBCMR, dated 3 August 2006, w/atchs.
Exhibit D. Letter, AFBCMR, dated 3 August 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
XXXXXXX
XXXXXXX
XXXXXXX
Dear XXXXXXX
Reference your application, AFBCMR BC-2006-01562, 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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