RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-03286
INDEX CODE: 137.01
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. Her former husband's records be corrected to reflect that he elected
former spouse coverage under the Survivor Benefits Program (SBP).
2. Her two children be added as beneficiaries to the SBP.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her spouse was supposed to file the appropriate paperwork as directed by
the divorce decree.
In support of her request, the applicant provided a copy of her divorce
decree and a copy of a stipulation agreement.
Her complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is the former spouse of a retired colonel (0-6).
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR forwarded the request without recommendation due to there being
two potential SBP beneficiaries. DPSIAR states that the member’s widow
became the eligible spouse beneficiary on the first anniversary of their
marriage (15 March 2007), and the applicant's youngest child became an
ineligible beneficiary in September 1999.
The complete DPSIAR evaluation is at Exhibit B.
The BCMR Legal Advisor recommends denial. The Legal Advisor states that
although the applicant was directed by the 1998 divorce decree to continue
coverage on the former spouse; federal law does not provide provisions for
elections that are not made in a timely manner. A USAF/JAA legal opinion
provided an analysis which advises the Board not to consider such cases;
the applicant should be directed to the civil court system. SAF/GCM’s
opinion explains that in extraordinary circumstances, it is within the
Board’s authority to correct the record if it finds it necessary to prevent
and error or injustice.
The Legal Advisor states that if there were not a competing eligible
beneficiary, he would recommend correcting the record; however, the current
spouse is the eligible beneficiary.
The BCMR Legal Advisory, with attachments, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
She responded to correct an error in the Legal Advisory which states that
the spouse is deceased; however, the spouse is not deceased and never filed
the divorce decree with the Air Force as directed by the Court.
Her complete submission, with attachments, is at Exhibit E.
_________________________________________________________________
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 error or injustice. The applicant's complete submission was
thoroughly reviewed and her contentions were duly noted. However, we do
not find the applicant's assertions and the documentation presented in
support of her appeal sufficiently persuasive to override the rationale
provided by the BCMR Legal Advisor. In this respect, we took note of the
divorce decree that ordered the former service member to provide SBP
coverage for the applicant. However, we also note that federal law makes
the election unavailable when the deemed election is not timely effected,
and no evidence has been presented which shows a deemed election was made
within the one-year time period mandated by law. We are aware that in
extraordinary circumstances, it is within the authority of the Board to
correct a record if it finds it necessary to prevent an error or injustice.
However, in this case, we agree with the Legal Advisor that there are no
extraordinary circumstances here that support not enforcing the deemed
election requirements given the fact that a correction of the record in the
manner requested would deprive the former member’s current spouse of the
benefits she is currently entitled to. In view of the foregoing, and in
the absence of sufficient evidence to the contrary, we agree with the
recommendation of the Legal Advisor and adopt his rationale as the basis
for our decision the applicant has failed to sustain her burden of
establishing that she has suffered either an error or an injustice.
Accordingly, 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-2008-
03286 in Executive Session on 6 January 2009, under the provisions of AFI
36-2603:
Mr. Thomas S. Markiewicz, Chair
Ms. Audrey Y. Davis, Member
Mr. Grover L. Dunn, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 September 2008, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 6 October 2008.
Exhibit C. Letter, BCMR Legal Advisor, dated 22 October 2008,
w/atchs.
Exhibit D. Letter, AFBCMR, dated 23 October 2008.
Exhibit E. Letter, Applicant, dated 1 November 2008, w/atchs.
Exhibit F. Letter, BCMR Legal Advisor, dated 24 Novemeber
2008.
Exhibit G. Letter, AFBCMR, dated 2 December 2008, w/atch.
THOMAS S. MARKIEWICZ
Chair
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