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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