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 husbands 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
husbands 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
others 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 spouses behalf.
A persons 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 members retired
pay following divorce, the former spouse is not eligible to
receive annuity payments in the event of the members 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 applicants 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
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