RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-00939 

 COUNSEL: 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

Corrective action be taken to reflect that a deemed election for 
former spouse coverage was filed in a timely manner on her behalf 
under the Survivor Benefit Plan (SBP). 

 

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APPLICANT CONTENDS THAT: 

 

The terms of her divorce agreement states that she would be 
entitled to former spouse coverage under the SBP. She recently 
learned that her former spouse did not submit the deemed election 
on her behalf within the required timeframe and she was not aware 
of the requirement to submit forms to make a deemed election for 
SBP coverage. 

 

In support of her appeal, the applicant provides a personal 
statement, and background documents related to her request. 

 

Applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

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STATEMENT OF FACTS: 

 

The applicant’s former spouse, a retired Air Force lieutenant 
colonel, elected spouse only SBP coverage based on a reduced 
level of retired pay prior to his retirement on 1 July 1998. The 
parties were divorced on 10 July 2003 and, although unenforceable 
under the law at that time, the Decree of Divorce ordered the 
applicant to remain the irrevocable beneficiary for coverage 
under SBP. The applicant’s former spouse remarried on 
15 September 2006, but he did not notify the Defense Finance and 


Accounting Service (DFAS), of the change in his marital status or 
request that spouse coverage be established on his new wife’s 
behalf. Premiums for the spouse’s portion of the SBP coverage 
continued to be deducted from the member’s retired pay until 
October 2007, when DFAS retroactively suspended spouse coverage 
and issued a refund of overpaid premiums. 

 

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AIR FORCE EVALUATION: 

 

AFPC/DPSIAR has deferred making a recommendation as two potential 
SBP beneficiaries are involved. 

 

The complete AFPC/DPSIAR evaluation is at Exhibit B. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 1 May 2009, for review and comment within 30 days. As of this 
date, no response has been received by this office (Exhibit C). 

 

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ADDITIONAL AIR FORCE EVALUATION: 

 

The SAF/MRB Legal Advisor recommends denial of the applicant’s 
appeal. The Legal Advisor indicates the Board should not grant 
the applicant’s request regarding the SBP. Despite the July 2003 
court decree discussing SBP coverage, federal law makes the 
coverage unavailable when the deemed election is not timely 
effected. The applicant may not have known that she could have 
made the election but that does not change the legal 
requirements. If there were not a competing beneficiary, he 
would recommend granting the applicant’s appeal and correcting 
the record. However, there is a competing beneficiary in this 
case. He would also recommend granting the appeal and correcting 
the record if the member’s surviving spouse gave her notarized 
consent. Absent that 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 will deprive the former member’s current spouse 
of benefits to which she is legally entitled. He reminds the 
Board if it is inclined to grant the remedy, it should not reach 
a final decision until the view of the current spouse is 
solicited and considered. 

 

The complete SAF/MRB Legal Advisor’s evaluation is at Exhibit D. 

 

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the additional Air Force evaluation was forwarded to 
the applicant on 19 January 2010, for review and comment within 
30 days (Exhibit D). 

 

Copies of the SAF/GCM Legal Advisory, dated 18 October 2006, and 
the USAF/JAA Legal Advisory, dated 19 October 2006, which were 
referenced in the SAF/MRB Legal Advisor’s recommendation of 
2 September 2009, were also forwarded to the applicant on 
19 January 2010 for review and comment within 30 days. As of 
this date, no response has been received by this office 
(Exhibit E). 

 

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THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by existing 
law or regulations. 

 

2. The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice regarding the 
applicant’s request for SBP coverage. After a thorough review of 
the evidence of record and applicant’s submission, we are not 
persuaded the former member’s records should be changed to make 
the applicant an eligible former spouse SBP beneficiary. 
Therefore, we agree with the opinion and recommendation of the 
SAF/MRB Legal Advisor and adopt his rationale as the basis for 
our conclusion the applicant has not been the victim of an error 
or injustice, and in the absence of evidence to the contrary, we 
find no basis to recommend granting the relief sought in this 
application. In view of the above, and in the absence of 
evidence to the contrary, we find no 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; 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. 

 

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The following members of the Board considered Docket Number BC-
2009-00939 in Executive Session on 4 March 2010, under the 
provisions of AFI 36-2603: 

 

 , Vice Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 21 Mar 09, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 13 Apr 09. 

 Exhibit C. Letter, SAF/MRBR, dated 1 May 09. 

 Exhibit D. Letter, SAF/MRB Legal Advisor, dated 2 Sep 09. 

 Exhibit E. Letter, AFBCMR, dated 19 Jan 10, w/atchs. 

 

 

 

 

 

 Vice Chair