Search Decisions

Decision Text

AF | BCMR | CY2007 | BC 2007 03737
Original file (BC 2007 03737.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03737
		INDEX CODE:  137.04
		COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________
_

APPLICANT REQUESTS THAT:

Her deceased former husband’s records be corrected to entitle 
her to a Survivor Benefit Plan (SBP) annuity.

________________________________________________________________
_

APPLICANT CONTENDS THAT:

She had no knowledge there was SBP coverage until Oct 07.

Her divorce settlement plainly states that neither party shall 
make any claim to the retirement benefits of the other.  
However, she found out in Nov 07, that her husband had in fact 
made a provision for her to have an annuity when he retired.  

The annuity was taken out at the time of his retirement in 1989, 
and well before their divorce in 1992, without her ever knowing 
it.  Had she known this at the time of her divorce, she would 
not have requested a statement be made about a future claim on 
his retirement.

She did not even know she was the beneficiary of his military 
life insurance until his death.

In support of her request, the applicant provided a copy of 
their marriage certificate, their divorce decree, her former 
husband’s death certificate, an AF Form 114, Arrears of Retired 
Pay Designation and/or Annuity Beneficiary Changes, a settlement 
agreement incorporated in their divorce decree, and a letter to 
the Retiree Services Office at AFPC.

The applicant's complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________
_

STATEMENT OF FACTS:

The Air Force indicates the member and the applicant were 
married on 8 May 71.  He elected spouse only SBP coverage based 
on full retired pay prior to his 1 May 89 retirement.  The 
parties divorced on 17 Aug 92, and the settlement agreement, 
incorporated in the divorce decree, stated both the applicant 
and the decedent agreed to relinquish their rights to the 
other’s retirement benefit.  In Apr 93, the member notified the 
Defense Finance and Accounting Service (DFAS) of the change in 
his martial status and DFAS removed the applicant as the 
eligible spouse beneficiary and refunded overpaid premiums 
retroactive to the date of divorce.  There is no evidence either 
party has remarried and the member died on 4 May 03. 

________________________________________________________________
_

AIR FORCE EVALUATION:

AFPC/DPSIAR reviewed this application and recommends denial.  
Public Law (PL) 99-145, 8 Nov 85, but effective 1 Mar 86, 
required the spouse of a married member, who retired on or after 
the effective date of the law, to concur in writing in any 
election that provided less than maximum SBP coverage for the 
spouse.  Concurrence is not required if the member elects SBP 
coverage on full retired pay on the spouse’s behalf.

A person’s eligibility to receive a spouse SBP annuity 
terminates upon divorce.  However, the law provides 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 legal documentation that the member agreed, or the court 
ordered the member, to establish former spouse coverage.  If 
neither the member nor the former spouse requests the election 
change within the one-year eligibility period, former spouse 
coverage may not be established thereafter.  Although SBP 
premiums may continue to be deducted from the member’s retired 
pay following divorce, the former spouse is not eligible to 
receive annuity payments in the event of the member’s death.

Even though the SBP was not addressed in the divorce decree, the 
member could have elected former spouse coverage voluntarily 
within the first year following the divorce, but failed to do 
so.  Instead, he took specific action to suspend his SBP 
premiums eight months after the divorce, indicative of his 
intent not to maintain SBP coverage on the applicant’s behalf.  
Furthermore, the petitioner fails to provide a reason for her 
four year delay in requesting corrective action.

The DPSIAR evaluation is at Exhibit B.

________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 Jan 08, a copy of the Air Force evaluation was forwarded 
to the applicant for review and comment within 30 days.  To 
date, a response has not been received.

________________________________________________________________
_


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 the Air Force office of primary responsibility and adopt its 
rationale as the basis for our conclusion that the applicant has 
not been the victim of an error or injustice.  Therefore, in the 
absence of 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 Docket Number    
BC-2007-03737 in Executive Session on 26 Jun 08, under the 
provisions of AFI 36-2603:

	Ms. XXXXXXXXXXXXX, Panel Chair
	Mr. XXXXXXXXXXXXX, Member
	Ms. XXXXXXXXXXXXX, Member

The following documentary evidence pertaining to Docket Number 
BC-2007-03737 was considered:

    Exhibit A.  DD Form 149, dated 9 Nov 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIAR, 21 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 18 Jan 08.




								XXXXXXXXXXXXXXX
								Panel Chair




Similar Decisions

  • AF | BCMR | CY2011 | BC-2011-04372

    Original file (BC-2011-04372.txt) Auto-classification: Approved

    There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. The evidence of record reflects that as a part of the divorce settlement the court ordered the applicant to elect former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force...

  • AF | BCMR | CY2012 | BC-2012-01307

    Original file (BC-2012-01307.pdf) Auto-classification: Denied

    If neither the member nor the spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify DFAS—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...

  • AF | BCMR | CY2012 | BC-2012-01351

    Original file (BC-2012-01351.pdf) Auto-classification: Approved

    DPSIDAR states that there is no evidence of Air Force error in this case; however, in the absence of a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming APPLICANT as the former spouse beneficiary, effective 11 January 2005. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the...

  • AF | BCMR | CY2012 | BC-2012-02752

    Original file (BC-2012-02752.txt) Auto-classification: Approved

    There is no evidence of Air Force error in this case and absent a competing claimant, DPSIAR recommends the member's record be corrected to reflect on 10 Apr 2009, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. There is no evidence of Air Force error; however, to preclude an injustice, we agree with AFPC/DPSIAR’s recommendation that the member’s records should be corrected to reflect that he made a...

  • AF | BCMR | CY2012 | BC 2012 02752

    Original file (BC 2012 02752.txt) Auto-classification: Approved

    The member did not request coverage for his former spouse be terminated and the fact that SBP premiums were deducted from his retired pay for over three years following their divorce are indicative of his intent to maintain the applicant as the eligible SBP beneficiary. There is no evidence of Air Force error in this case and absent a competing claimant, DPSIAR recommends the member's record be corrected to reflect on 10 Apr 2009, he elected to change SBP spouse to former spouse coverage...

  • AF | BCMR | CY2003 | BC-2002-03271

    Original file (BC-2002-03271.doc) Auto-classification: Approved

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-03271 COUNSEL: None HEARING DESIRED: No _________________________________________________________________ APPLICANT REQUESTS THAT: Her former husband's records be corrected to show he filed a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) and any SBP premium payments due be waived. ...

  • ARMY | BCMR | CY2014 | 20140019417

    Original file (20140019417.txt) Auto-classification: Denied

    The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. On 25 March 1987, the FSM and applicant were divorced. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse...

  • ARMY | BCMR | CY2014 | 20140019539

    Original file (20140019539.txt) Auto-classification: Approved

    On 26 September 2013, by letter, DFAS responded to the applicant that a review of the FSM's retired pay account reflected the FSM did not elect former spouse SBP coverage and although the divorce decree stated she must deem the election, there is no evidence she did so. On 27 January 2014, by letter, DFAS explained that in order for the former spouse to be eligible for the SBP annuity, the member would have to request in writing to change the SBP election from spouse to former spouse or the...

  • AF | BCMR | CY2011 | BC-2011-04466

    Original file (BC-2011-04466.txt) Auto-classification: Denied

    _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. While we do not take issue with the applicant’s assertion that her divorce decree ordered her deceased former husband to continue coverage for her under the SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. ...

  • AF | BCMR | CY2011 | BC-2011-02485

    Original file (BC-2011-02485.txt) Auto-classification: Approved

    Additional relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. DPSIAR states the applicant and the former member were married on 28 Mar 83 and he elected spouse and child SBP coverage based on full retired pay prior to being placed on the Permanent Disability Retired List (PDRL) effective 28 May 03. In this respect, although neither the former member nor the applicant filed a valid election for SBP within the...