RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-03579
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased husband’s record be corrected to show the Air Force Board for
Correction for Military Records (AFBCMR) did not award Survivor Benefit
Plan (SBP) coverage to his former spouse.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her husband’s former spouse should have known she was supposed to file a
deemed election. The AFBCMR based its decision on a deemed election form
and divorce decree from 21 years ago. Military pay is not property to be
divided, but it was. She became disabled seven years ago. Half of her
husband’s military retirement and his social security are lost. She
collected SBP for nearly two years. Her husband wanted to be sure she was
taken care of and the AFBCMR decided on her life without her involvement.
In support of her request, the applicant provided a personal statement, a
copy of a death certificate, a divorce decree, and letters from the Defense
Finance and Accounting Service Center (DFAS).
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former service member elected spouse-only SBP coverage based on a
reduced level of retired pay prior to his 1 July 1977 retirement. He
increased his level of coverage to full retired pay during the open
enrollment period authorized by Public Law (PL) 97-35 (1 October 1981 – 30
September 1982). He and his former spouse divorced on 21 May 1986 and in
the divorce decree, he was given the option of maintaining SBP or acquiring
life insurance on his former spouse’s behalf. However, neither party
submitted a valid SBP election change during the required time limit. He
married the applicant on 7 July 1988, but did not establish SBP coverage on
her behalf.
In 2006, the AFBCMR corrected his records to show that on 22 May 1986, he
elected former spouse coverage based on full retired pay. Prior to making
this correction, the AFBCMR received a notarized statement, dated
24 February 2006, in which applicant admitted she was aware he was required
to carry SBP for the former spouse and that she did not intend to make a
claim for the SBP. On 16 October 2007, The Defense Finance and Accounting
Service-Cleveland Center (DFAS-CL) established SBP on the former spouse’s
behalf.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial. DPSIAR states notwithstanding the
applicant’s claim that the AFBCMR acted without her involvement, the record
contains her statement, voluntarily waiving her entitlement to SBP. There
is no evidence of error or injustice in this case and no basis in law to
grant relief.
DPSIAR’s complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant reviewed the evaluation and states that she was not included in
the decision regarding SBP benefits. When she submitted a statement
indicating she was not going to apply for benefits – this statement should
not have been included in the decision process. She has collected SBP
benefits in good faith for two years. The Air Force knowing she was the
correct spouse to receive the benefits allowed the former spouse to turn
back time and fill out a deemed election form.
Applicant’s complete response, with attachment, is at Exhibit D.
_________________________________________________________________
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. The applicant’s contentions are duly
noted; however, we agree with the opinion and recommendation of the office
of primary responsibility and adopt its rationale as the basis for our
conclusion that the applicant has not been the victim of an error or
injustice. Contrary to her assertion, the applicant signed a notarized
statement voluntarily waiving her entitlement to the SBP. Accordingly we
do not believe that the corrections previously directed by the Board were
in error or constitute an injustice. Therefore, in the absence of evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of an error or an injustice; the application was denied
without a personal appearance; and 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-
03579 in Executive Session on 14 February 2008, under the provisions of AFI
36-2603:
Ms. Marcia Jane Bachman, Acting Panel Chair
Ms. Janet I. Hassan, Member
Mr. Alan A. Blomgren, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 2 November 2007, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 6 December 2007.
Exhibit C. Letter, SAF/MRBR, dated 14 December 2007.
Exhibit D. Letter, Applicant, undated, w/atch.
MARCIA JANE BACHMAN
Acting Panel Chair
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