RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-03047
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 13 JANUARY 2008
_________________________________________________________________
APPLICANT REQUESTS THAT:
Corrective action be taken to reflect he elected former spouse coverage
under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was not aware that he had one year from the date of his divorce to
update his SBP election to former spouse.
In support of his request, applicant provided a copy of the Judgment of
Absolute Divorce which incorporates the terms and provisions of his
Separation Agreement.
Applicant’s complete submission, with attachment, is at Exhibit A.
_________________________________________________________________
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. The parties divorced on 22
Mar 95 and the separation and property settlement agreement, incorporated
in the divorce decree, named his former spouse as the irrevocable
beneficiary of the SBP. 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. The youngest child
lost eligibility in Jun 95 due to age. Defense Enrollment Eligibility
Reporting System (DEERS) records show the member and his current wife
married on 15 Jul 95, but he did not notify the finance center of the
change in his marital status or request that spouse coverage be established
on his new wife’s behalf. Premiums for the spouse’s portion of the SBP
coverage continue to be deducted from the member’s retired pay and his
retired pay records erroneously reflect the former spouse’s name and date
of birth (28 Feb 47) as the eligible spouse beneficiary.
_________________________________________________________________
AIR FORCE EVALUATION:
Based on guidance by the AFBCMR on 18 Mar 04, DPPRT is forwarding the
request without a recommendation because it involves two potential SBP
beneficiaries.
The DPPRT evaluation is at Exhibit B.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The SAF/MRB Legal Advisor reviewed this application and recommended denial.
Despite the 1995 court order directing the member to make the election,
federal law makes the election unavailable when the deemed election is not
timely effected. The applicant’s ignorance of the legal requirement does
not prevent it from having its congressionally intended effect. If there
were not a competing eligible beneficiary, then he would recommend
correcting the record, but there is. Accordingly, he sees no extraordinary
circumstances that would support not enforcing the deemed election
requirement given the fact correcting the record in the manner requested
will deprive the member’s current spouse of benefits to which she is
legally entitled. If the panel is inclined to grant the remedy, it should
not reach a final decision until the view of the current spouse is
solicited and considered.
A copy of the SAF/MRB evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION
On 26 Feb 07, the Board staff forwarded to the applicant copies of the Air
Force evaluation, SAF/MRB legal opinion, and memorandums from HQ USAF/JAA
and SAF/GCM for review and comment within 30 days. To date, no response
has been received by this office. (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 the SAF/MRB 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 servicemember nor
the former spouse submitted a valid election within the one-year period
required by law to establish former spouse coverage. In view of 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-2006-
03047 in Executive Session on 7 June 2007, under the provisions of AFI 36-
2603:
Ms. Kathy L. Boockholdt, Panel Chair
Mr. Alan A. Blomgren, Member
Ms. Janet I. Hassan, Member
The following documentary evidence pertaining to Docket Number BC-2006-
03047 was considered:
Exhibit A. DD Form 149, dated 30 Sep 06, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 30 Nov 06.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 26 Feb 07.
Exhibit D. Letter, AFBCMR, dated 27 Feb 07, w/atchs.
KATHY L. BOOCKHOLDT
Panel Chair
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