RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01035
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be changed to show he made a timely Survivor Benefit Plan
(SBP) election for former spouse coverage.
_________________________________________________________________
APPLICANT CONTENDS THAT:
As part of his divorce proceedings, he was required by the court to
provide SBP coverage to his former spouse.
In support of his appeal, the applicant has provided copies of the
divorce decree and DD Form 2656-1, SBP Election Statement for Former
Spouse Coverage.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
He and his former spouse married on 18 May 1963. He declined SBP
coverage prior to his 1 November 1978 retirement. He elected full
spouse only SBP coverage during the open enrollment authorized by
Public Law (PL) between 1 April 1992 and 31 March 1993. They divorced
on 12 October 1995 and the Property Agreement Settlement, incorporated
in the divorce decree, required the applicant to maintain the SBP on
his former spouse’s behalf. However, neither party submitted a valid
election change during the first year following the date their divorce
was finalized. He did report however, his marriage to his current
spouse but did not request SBP coverage be established on her behalf.
The SBP data at the finance center continues to reflect the former
spouse’s name and date of birth as the eligible spouse beneficiary and
SBP premiums continue to be deducted from his retired pay.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRT indicates that since the request involves two potential SBP
beneficiaries no recommendation is provided.
A complete copy of the Air Force evaluation is at Exhibit B.
AFBCMR Legal Advisor recommends denial. Despite the 1993 court order
directing the member to make the election, federal law makes the
election unavailable when the deemed election is not timely effected.
A complete copy of the Legal Advisor’s evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force BCMR Legal Advisor’s opinion was forwarded to
the applicant on 21 February 2007 for review and comment within 30
days. As of this date, this office has received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law
or regulations.
2. The application was timely filed.
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
BCMR Legal Advisor and adopt his rationale as the basis for our
conclusion that the applicant has not been the victim of an error or
injustice. There are no extraordinary circumstances that would
support not enforcing the deemed election requirement given the fact
correcting the record in the manner requested would deprive the
current spouse benefits to which she is legally entitled. 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 AFBCMR Docket Number BC-
2006-01035 in Executive Session on 30 January 2007, under the
provisions of AFI 36-2603:
Ms. Kathleen F. Graham, Panel Chair
Ms. Renee M. Collier, Member
Ms. Janet I. Hassan, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Apr 07, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 31 May 07.
Exhibit C. Letter, Legal Advisor, 27 Jun 07.
KATHLEEN F. GRAHAM
Panel Chair
AF | BCMR | CY2007 | BC-2007-00729
We note neither the applicant, nor the former spouse filed the necessary SBP election applications that would have provided the former spouse SBP coverage within the one-year time frame allotted them to do so. Exhibit C. Letter, AFBCMR Legal Advisor, dated 27 June 2007. Exhibit D. Letter, SAF/MRBC, dated 18 July 2007.
AF | BCMR | CY2007 | BC-2006-01689
No recommendation is provided. A complete copy of the Legal Advisor’s evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel argues the legal advisory’s contention is that a deemed election was not made. 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 AFBCMR Legal Advisor and adopt his rationale as...
AF | BCMR | CY2008 | BC-2007-01626
If there were not a competing eligible beneficiary, or that beneficiary would consent to the change via a notarized statement, he would recommend correcting the record. The applicant’s complete response is at Exhibit D The deceased member’s widow provided a notarized statement stating in part, that she and her deceased husband had an understanding that the ex-wife (who is the applicant), would receive the SBP benefits. KATHLEEN F. GRAHAM Panel Chair AFBCMR BC-2007-01626 MEMORANDUM FOR THE...
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DPPRT’s complete evaluation is at Exhibit B. SAF/MRB (AFBCMR Legal Advisor) recommends denial. We note neither the applicant, nor the former spouse filed the necessary SBP election applications that would have provided the former spouse SBP coverage within the one-year time frame allotted them to do so. Exhibit C. Letter, SAF/MRB, dated 27 June 2007.
AF | BCMR | CY2007 | BC-2007-00647
In the latter case, the former spouse must provide legal documentation that the member agreed, or that the court ordered the member, to establish former spouse coverage. The Agency Legal Advisor recommends denial indicating that despite the Feb 03 court order directing the applicant to make the election, federal law makes the election unavailable when the deemed election is not timely effected. Accordingly, he sees no extraordinary circumstances here that would support not enforcing the...
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The parties divorced on 26 December 1985 and in the marital settlement agreement the member agreed to designate the applicant as beneficiary to the SBP. 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 AFBCMR Legal Advisor and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice requiring corrective action by this Board. ...
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A complete copy of the Air Force evaluation is at Exhibit B. The Legal Advisor recommended that the Board obtain a copy of the earlier support agreement to make clear which date was applicable as the starting point of the one year time limit the applicant had to make the change to former spouse coverage. Exhibit C. Letter, SAF/MRBR, dated 22 Sep 06.
AF | BCMR | CY2007 | BC-2007-00884
The law at the time of the member’s retirement did not require that the spouse concur in the election and he did not elect SBP coverage on her behalf at that time. Further, the laws controlling SBP preclude a married member who declined spouse coverage at the time of retirement from providing SBP former spouse coverage following divorce unless Congress authorized an open enrollment. DPPRT states the member had two opportunities to elect former spouse SBP coverage on the applicant’s behalf...
AF | BCMR | CY2007 | BC-2007-01199
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-2006-03047
_________________________________________________________________ STATEMENT OF FACTS: The Air Force indicated the member and his former spouse were married on 15 Jun 68 and the member elected spouse and child SBP coverage based on full retired pay prior to his 1 Feb 86 retirement. However, there is no evidence the former spouse submitted a deemed election within the required time limit, nor that the member elected former spouse coverage on her behalf. Exhibit C. Letter, SAF/MRB Legal...