RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01689
INDEX CODE: 137.01
COUNSEL: ROBERT G. BERNSTEIN
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be designated as beneficiary under the Survivor Benefit Plan
(SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was the decedent’s former spouse and as such was designated, by
court order, as the beneficiary of her now deceased, former spouse’s
SBP election. She should be receiving an SBP annuity.
In support of her appeal, the applicant has provided copies of their
dissolution of marriage, marriage certificate, SBP enrollment forms,
and the deceased member’s death certificate.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member and the applicant were married on 3 August 1968 and he
declined SBP coverage prior to his 1 October 1982 retirement. He
elected spouse only coverage based on full retired pay during the 1992-
93 Open Enrollment authorized by Public Law (PL) 101-189. They
divorced on 24 January 1993 and the divorce decree ordered the member
to submit the necessary documents to maintain the SBP on the
applicant’s behalf. However, neither the member nor the applicant
submitted a valid former spouse election within the one year allotted
to them to do so. The member was remarried on 10 May 1994 and, on 26
August 2005, and requested the Defense Finance and Accounting Service
(DFAS) remove the applicant, and add his new spouse to the plan. DFAS
complied with the request and SBP premiums for his current wife’s
coverage was deducted from his retired pay until his death on 22 May
2006. His widow is currently receiving a monthly SBP annuity of $753.
_________________________________________________________________
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 D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel argues the legal advisory’s contention is that a deemed
election was not made. Counsel states the divorce judgment entered on
28 June 1993 incorporates an election of his client and incorporates
the certified mail evidence of mailing to DFAS – DE/RT.
Applicant’s complete response is at Exhibit E.
_________________________________________________________________
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 an error or an 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 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.
Neither the decedent nor the former spouse made a timely deemed
election during the timeframe allowed them to do so. Consequently,
the decedents widow is considered legally entitled to the SBP
benefits. 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-
2006-01689 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 31 May 06, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 20 Jul 06
Exhibit C. Letter, SAF/MRBC, dated 16 Aug 06, w/atchs.
Exhibit D. Letter, Legal Advisor, undated.
Exhibit E. Letter, Counsel, dated 1 Mar 07, w/atchs.
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