RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00647
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 1 SEP 08
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election for
former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
After his divorce, he failed to complete the required forms for former
spouse coverage and the oversight on his part should not deprive his
former spouse of her entitlement.
In support of his appeal, the applicant provided a personal statement,
documentation pertaining to his SBP election for former spouse
coverage, a petition for a divorce, and a divorce decree.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and his former spouse were married on 16 Oct 79 and he
elected spouse only SBP coverage based on full retired pay prior to
his 1 Aug 92 retirement. The parties divorced on 27 Feb 03 and in the
marital and property settlement agreement, incorporated in the divorce
decree, the member agreed to maintain his former spouse as beneficiary
to the SBP. There is no evidence either party submitted a valid
former spouse election during the required time limit. Defense
Enrollment Eligibility Reporting System (DEERS) records show the
applicant and his current spouse married on 1 Nov 03, but he did not
notify the finance center of the change in his marital status nor
request coverage be established on her behalf. The Defense Finance
and Accounting Service-Cleveland Center (DFAS-CL) records erroneously
reflect the former spouse’s name and date of birth as the eligible
spouse beneficiary and premiums continue to be deducted from the
applicant’s retired pay.
A person's eligibility to receive a spouse SBP annuity terminates upon
divorce. However, the law provides two mechanisms for changing spouse
coverage 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 that the court ordered the member, to establish former spouse
coverage. If neither the member nor the former 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-CL of the divorce and continues to pay SBP
premiums afterwards, the former spouse is not eligible for annuity
payments upon the member's death.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR 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.
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. The applicant's oversight of the legal
requirement does not prevent it from having its congressionally
intended effect. If there were not a competing eligible beneficiary,
he would recommend correcting the record, but there is. Accordingly,
he sees no extraordinary circumstances here that would support not
enforcing the deemed election requirement given the fact correcting
the record in the manner requested will deprive the applicant’s
current spouse of benefits to which she is legally entitled. He would
remind the panel if they are inclined to grant the remedy, it should
not reach a final decision until the view of the current spouse is
solicited and considered.
A complete copy of the Legal Advisor’s evaluation, with attachments,
is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant reviewed the advisory opinion and furnished a response
indicating, in summary, that he is under a court order to have his
former spouse as the SBP beneficiary. If his request is not favorably
considered, his former spouse would be harmed, and he would be in
violation of a court order. He earnestly asks that the Board make a
decision that would entitle his former spouse to the SBP benefits she
rightfully deserves.
Applicant’s complete response, with attachments, is at Exhibit E.
By letter, dated 27 Jun 07, the applicant’s former spouse provided her
own statement for the Board’s consideration, which is attached at
Exhibit F.
Applicant provided a subsequent response, dated 29 Jun 07, and
additional documentary evidence for the Board’s consideration
(notarized statement from his current spouse), which is attached at
Exhibit G.
Applicant provided an addendum to his 29 Jun 07 response, dated 6 Jul
07, which is attached at Exhibit H.
_________________________________________________________________
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. Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice. After a thorough review of the facts
and circumstances of this case, we are persuaded the former spouse
should receive the SBP annuity. In this respect, we note the
applicant’s current spouse has provided a notarized statement
relinquishing her entitlement to the SBP and we are satisfied that she
fully understands and accepts her husband’s decision to cover his
former spouse. In view of the foregoing, we recommend the applicant’s
records be corrected to extent set forth below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 28 Feb 03, he
elected former spouse coverage under the Survivor Benefit Plan based
on full retired pay, naming Nancy R. Zehrer as former spouse
beneficiary.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2007-00647 in Executive Session on 26 Sep 07, under the provisions of
AFI 36-2603:
Ms. Kathleen F. Graham, Panel Chair
Ms. Janet I. Hassan, Member
Ms. Renee M. Collier, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 20 Feb 07, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 29 Mar 07.
Exhibit C. Letter, Legal Advisor, dated 17 May 07, w/atchs.
Exhibit D. Letter, AFBCMR, dated 6 Jun 07.
Exhibit E. Letter, applicant, dated 21 Jun 07, w/atchs.
Exhibit F. Letter, applicant’s former spouse,
dated 27 Jun 07.
Exhibit G. Letter, applicant, dated 29 Jun 07, w/atch.
Exhibit H. Letter, applicant, dated 6 Jul 07.
KATHLEEN F. GRAHAM
Panel Chair
AFBCMR BC-2007-00647
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to, be corrected to show that on 28 February 2003, he
elected former spouse coverage under the Survivor Benefit Plan based
on full retired pay, naming as former spouse beneficiary.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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