RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-01448
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her now deceased, former spouse’s military record be changed to show
he made a timely Survivor Benefit Plan (SBP) election for former
spouse coverage on her behalf.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former spouse died on 25 April 2007 and she was told he had
terminated his SBP election made during their divorce. On 3 May 2007,
she informed the Beale AFB Casualty Assistance Representative that she
wished to apply for her SBP entitlement as a former spouse.
In support of her appeal, the applicant has provided a marriage
certificate, death certificate, retirement orders and a divorce
decree.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member and the applicant were married on 21 July 1962 and he
elected spouse and child SBP coverage based on full, retired pay prior
to his 1 September 1979 retirement. The parties divorced on 31
December 1990 and in the divorce decree, the member agreed to elect an
SBP annuity for the benefit of the applicant. There is no evidence
either party submitted a valid former spouse election during the
required time following their divorce. Premiums for the spouse’s
portion of the SBP coverage continued to be deducted from the member’s
retired pay until July 1991, when the Defense Finance and Accounting
Service (DFAS) retroactively suspended spouse coverage and issued a
refund of overpaid premiums. Records show that the member married his
current spouse on 17 July 2003 but he did not notify DFAS of the
change in his marital status nor request coverage be established on
his current spouse’s behalf.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRT, based on guidance by the AFBCMR on 18 March 2004, forwards
this request without a recommendation because it involves two
potential SBP beneficiaries.
DPPRT’s complete evaluation is at Exhibit B.
SAF/MRB (AFBCMR Legal Advisor) recommends denial. The AFBCMR legal
advisor states despite the 1990 court order directing the member to
make the election, federal law makes the election unavailable when the
deemed election is not timely effected.
MRB’s complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the SAF/MRB evaluation was forwarded to the applicant on 18
July 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 an error or injustice. After a thorough review of
the evidence of record and applicant’s submission, we are not
persuaded that the decedent’s records should be changed to make the
applicant 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. Therefore, 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, 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-
2007-01448 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 4 May 2007, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 5 June 2007.
Exhibit C. Letter, SAF/MRB, dated 27 June 2007.
KATHLEEN F. GRAHAM
Panel Chair
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