RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-00796
COUNSEL:
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show his former spouse as his Survivor
Benefit Plan (SBP) beneficiary, rather than his current spouse.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The error in his records was an oversight on his part when he went
through his retirement process. He and his former spouse divorced
four years prior to his retirement. The divorce decree named his
former spouse as the beneficiary. However, as four years had
passed, he mistakenly selected his current spouse as beneficiary
when he should have selected his former spouse.
In support of his appeal, the applicant provides pertinent copies
of divorce paperwork from his first divorce, both of his marriage
licenses, a DD Form 2293, Application for Former Spouse Payments
from Retired Pay, and a Division of Thrift Savings Plan ruling.
Applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and his former spouse were married on 28 Mar 89 and
divorced on 23 Jul 04. The court order, Dividing Military
Retirement, deemed the former spouse as the irrevocable SBP
beneficiary. However, the Defense Finance and Accounting Service
(DFAS) has no record of the former spouse requesting a deemed
election within one year of the divorce. The applicant and his
current spouse married on 3 Nov 07, one year prior to his
retirement. The applicant was counseled on the options and
effects of the SBP and he elected his current spouse as his SBP
beneficiary based on full retired pay. Absent a deemed election
from the former spouse within the required time frame, DFAS
established coverage for the applicants current spouse.
_________________________________________________________________
On 16 Mar 09, AFPC/DPIAR requested the applicant complete a
DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement
for Former Spouse Coverage, and forward it to his former spouse
for completion of the former spouse section of the form. The
applicant responded that he forwarded the form to his former
spouses lawyer; however, to date, DPSIAR has not received the
completed document. Therefore, as the request involves two
potential SBP beneficiaries, no recommendation is provided.
DPSIARs complete evaluation is at Exhibit B.
The Agency Legal Advisor recommends denial. Despite a court
order directing the member to cover his first wife, Federal law
makes the election unavailable when the deemed election is not
timely effected. If there were not a competing eligible
beneficiary, the Agency Legal Advisor would recommend correcting
the record. He would also recommend correcting the record if the
current spouse gave her notarized consent. Absent the consent,
there are no extraordinary circumstances that would support not
enforcing the deemed election requirement given the fact
correcting the record in the manner requested would deprive the
decedents current spouse benefits to which she is legally
entitled.
The complete Legal Advisors evaluation, with attachments, is at
Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 10 December 2009 for review and response 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 error or injustice. After a thorough
review of the evidence of record and applicant's submission, we
are not persuaded the applicants 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 application that would have provided SBP
coverage to the former spouse within the one-year time frame
allotted them to do so. Therefore, we agree with the opinion and
recommendation of the Agency Legal Advisor and adopt his rationale
as the basis for our conclusion the applicant has not been the
victim of an error or injustice. Accordingly, we find no basis to
recommend granting the requested relief.
_________________________________________________________________
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-2009-00796 in Executive Session on 2 February 2010, under the
provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 2 Feb 09, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 17 Apr 09.
Exhibit C. Letter, Legal Advisor, dated 5 Nov 09,
w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 10 Dec 09.
Panel Chair
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