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AF | BCMR | CY2010 | BC-2009-02738
Original file (BC-2009-02738.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-02738
            INDEX CODE:  137.04
            COUNSEL:  DENISE E. READY

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His former spouse’s date of birth (DOB)  on  his  DD  Form  2656,  Data  for
Payment of Retired Personnel records be corrected to read 2 Sep 58.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His former spouse’s DOB is incorrect and may cause  controversy  on  how  to
disperse the SBP annuity when he dies.

In support of the application, the applicant submits copies of  his  divorce
decree, a letter from his attorney and his affidavit.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant elected spouse and child coverage based on  full  retired  pay
prior to his 1 Mar 95 retirement.  The parties divorced on 14 Apr  97.   SBP
spouse coverage premiums  continue  to  be  deducted  from  the  applicant’s
retired  pay;  however,  the  Defense  Finance  and   Accounting   Services,
Cleveland (DFAS-CL) records erroneously reflect the  spouse’s  (former)  DOB
as 2 Sep 50 vice 2 Sep 58.

The Defense  Enrollment  Eligibility  Report  System  (DEERS)  reflects  the
applicant and his current spouse married on 8 Jan 99.   The  current  spouse
became the eligible spouse beneficiary on the  first  anniversary  of  their
marriage (8 Jan 00).  The affidavit provided  by  the  applicant  indicating
that his former spouse continue to be named as the beneficiary  of  the  SBP
is dated 8 Jul 09.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits B and C.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSIAR states based on guidance by the AFBCMR on  18  Mar  04,  they
are forwarding the request without a recommendation because it involves  two
potential SBP beneficiaries.

The complete HQ AFPC/DPSIAR evaluation is at Exhibit B.

The SAF/MRB Legal  Advisor  recommends  denial.   The  Legal  Advisor  notes
neither party  submitted  a  deemed  election  within  the  one-year  period
mandated by federal law.  The applicant was provided the HQ  USAF/JAA  legal
opinion which advises the Board not to consider such  cases  but  to  direct
applicants to the civil court system.   Additionally,  the  SAF/GCM  opinion
explains that in extraordinary circumstances, it is within the authority  of
the AFBCMR to correct the record if it finds  it  necessary  to  prevent  an
error or injustice.

The Legal Advisor opines even if the  applicant  was  ordered  to  keep  SBP
coverage, federal law makes the election unavailable when a deemed  election
is not timely effected.  The correct SBP beneficiary by operation of law  is
the applicant’s current spouse.  He  states  that  correcting  the  date  of
birth of an ineligible beneficiary  is  not  appropriate  since  the  AFBCMR
would be involved  in  what  could  be  seen  as  a  misrepresentation.   He
concludes if there were no competing eligible beneficiary  or  there  was  a
notarized consent of the current spouse, he would recommend  correcting  the
applicant’s record.

The complete Legal Advisor’s evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  29
Jan 10, for review and comment within  30  days.   As  of  this  date,  this
office has received no response (Exhibit D).

_________________________________________________________________

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.   The  applicant’s  contentions  are  not
entirely clear as it appears he believes the  correction  of  a  birth  date
will automatically entitle his former spouse to  SBP  coverage.   Since  the
period of time allowed by law to make a deemed election  for  former  spouse
coverage  has  already  passed,  the  only  way  the  Board  can  grant  the
applicant’s request to change  the  record  is  if  he  were  to  provide  a
notarized statement from his current spouse  relinquishing  her  entitlement
to the SBP.  Therefore, since a notarized statement has  not  been  provided
and he has not clearly spelled out his intent, we find  no  basis  to  grant
the correction requested in this record.  In view of the aforementioned,  we
are unable to grant 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 this application in  Executive
Session on 18 May 10, under the provisions of AFI 36-2603:

      Chair
      Member
      Member

The following documentary evidence was considered in BC-2009-02738:

    Exhibit A.  DD Form 149, dated 29 Jun 10, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 23 Sep 09.
    Exhibit C.  Letter, SAF/MRB Legal Advisor, dated 29 Jan 10.
    Exhibit D.  Letter, AFBCMR, dated 29 Jan 10, w/atchs.




                                   Chair

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