RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00729
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His record be changed to show he made a valid Survivor Benefit Plan
(SBP) election for former spouse coverage as ordered in their final
divorce decree.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Neither he nor his former spouse was informed there was a one-year
notification requirement to change his SBP coverage from spouse to
former spouse.
In support of his appeal, the applicant has provided a statement from
his former spouse, an excerpt from his divorce decree and copies of
letters to Congressional representatives and President George W. Bush.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and his former spouse were married on 16 August 1960 and
he elected spouse and child SBP coverage based on full retired pay
prior to his 1 March 1980 retirement. They were divorced on 17
December 1992 and on 6 April 1993, a court order modifying the final
decree ordered the former spouse to remain the designated beneficiary
to the SBP; however, the member did not provide a copy of his final
divorce decree to the Defense Finance and Accounting Service (DFAS).
There is no evidence either party submitted a valid former spouse
election during the one-year time frame required by law to do so.
Premiums for the spouse’s portion of the SBP coverage continued to be
deducted from his retired pay until January 1993 when DFAS
retroactively suspended coverage and issued a refund of those
premiums. Records show the applicant and his current spouse married
on 3 November 1993 but he did not notify DFAS of the change in his
marital status or request that spouse coverage be established on his
new wife’s behalf.
_________________________________________________________________
AIR FORCE EVALUATION:
On 24 April 2007, AFPC/DPPRT requested the applicant provide a
complete copy of his final divorce decree to include the separation
agreement, and a copy of the marriage certificate(s) if either party
has remarried. To date, he has not responded to the DPPRT request.
Therefore, based on guidance issued by the AFBCMR on 18 March 2004,
DPPRT forwards this request without a recommendation because it
involves two potential SBP beneficiaries.
DPPRT’s complete evaluation is at Exhibit B.
The AFBCMR Legal Advisor recommends denial of the applicant’s claim.
The legal advisor contends that despite the 1993 amendment directing
the member to make the election, federal law makes the election
unavailable when the deemed election is not timely effected. The fact
neither he nor his spouse was aware of the legal requirement does not
prevent it from having its congressionally intended effect.
The AFBCMR Legal Advisor’s complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the evaluations were forwarded to the applicant on 18 July
07 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 an error or injustice. After a thorough review of
the evidence of record and applicant’s submission, we are not
persuaded that the applicant’s records should be changed to make his
former spouse an eligible former spouse SBP beneficiary. 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. The
applicant has not responded to DPPRT’s request for copies of his final
divorce decree, separation agreement, and/or marriage certificates
showing the remarriage of either party. Therefore, 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, and 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-
2007-00729 in Executive Session on 26 September 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 April 2007, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 31 May 2007.
Exhibit C. Letter, AFBCMR Legal Advisor, dated 27 June 2007.
Exhibit D. Letter, SAF/MRBC, dated 18 July 2007.
KATHLEEN F. GRAHAM
Panel Chair
AF | BCMR | CY2007 | BC-2007-01448
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-2006-01035
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. 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. ...
AF | BCMR | CY2007 | BC-2007-01000
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. ...
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...
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 | 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...
AF | BCMR | CY2008 | BC-2006-02436
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-2007-01199
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-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 | CY2005 | BC-2005-01655
A week after the divorce from her husband, she took the divorce decree to Offutt AFB to finish the paperwork for DFAS for the annuity of her former husband’s retirement. In support of her application, applicant provided personal statements from both her and her daughter, copies of her 2 Jun 01 letter to DFAS, a 2 Jun 01 letter to her former husband, their divorce decree, a certified letter to the Director of DFAS from her attorney, her former husband’s death certificate, and his retirement...