RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-03347
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouse’s records be corrected to show that he elected former
spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former spouse was required by court order to elect coverage for her
under SBP; however, he failed to make the election in accordance with their
divorce decree. She never received notice that she could submit her
election to the Defense Finance and Accounting Services (DFAS) office. If
she had been notified, she would have done so.
In support of the application, the applicant submits copies of a letter
from DFAS, her former spouse’s death certificate, a DD Form 1883, SBP
Election Certificate, and her divorce decree.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and former military member were married on 1 Mar 63. He
elected spouse and child SBP coverage based on full retired pay prior to
his 1 Sep 79 retirement. The youngest child lost eligibility in Jun 80 due
to age. The parties divorced on 13 Nov 84, and the divorce decree ordered
the member to continue the SBP on the applicant’s behalf. However, there
is no evidence the member submitted an election change to establish former
spouse coverage on behalf of the applicant within the first year following
their divorce. The monthly SBP premiums ceased in Nov 84. The Defense
Enrollment Eligibility Reporting System (DEERS) records show the member
remarried on 20 Dec 03; however, there is no indication the decedent
requested his new spouse be named as his SBP beneficiary. There is no
evidence on how or when the marriage ended, but the deceased member’s death
certificate shows his marital status as divorced.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSIAR recommends denial. DPSIAR states a person’s eligibility to
receive a spouse SBP annuity terminates upon divorce. Public Law (PL) 98-
525 (19 Oct 84) permitted former spouses to request an SBP election be
deemed on their behalf if the member agreed to continue the coverage and
the court properly incorporated that agreement into the court order. The
laws did not permit former spouse coverage under the same costs and
provisions as spouse coverage until enactment of PL 99-145 (8 Nov 85, but
effective 1 Mar 86). The legislation authorized a one-year period (8 Nov
85 – 7 Nov 86) to elect former spouse coverage. On 14 Nov 86, PL 99-661
empowered Courts to mandate former spouse coverage without the member’s
agreement in court orders issued on or after 14 Nov 86.
Since the courts were not empowered to mandate former spouse SBP coverage
until 14 Nov 86, after the parties divorced, the language of their divorce
was and is unenforceable. The deceased member’s decision not to
voluntarily elect former spouse SBP coverage on the applicant’s behalf
shows his intent not to provide SBP for her.
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states she had no contact with her former spouse since their
divorce. The divorce decree required her former spouse to pay her half of
his military retirement pay and continue payment of SBP premiums. She did
not know about the policy on former spouse election nor did she know that
the judge who rendered his decision on the divorce decree may not have been
within his authority based on the laws at that time.
If she had known that her former spouse had disobeyed the court order and
not continued the SBP coverage, she would have acted promptly to correct
this matter.
The applicant’s complete statement is at 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. We took notice of the applicant's
complete submission in judging the merits of the case, to include her
response to the Air Force evaluation; however, we agree with the opinion
and recommendation of the Air Force office of primary responsibility and
adopt its rationale as the basis for our conclusion that the applicant has
not been the victim of an error or injustice. Therefore, 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; 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 22 Jun 10, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR BC-2009-03347 was
considered:
Exhibit A. DD Form 149, dated 8 Sep 09, w/atchs.
Exhibit B. Letter, HQ AFPC/DPSIAR, dated 5 Nov 09.
Exhibit C. Letter, SAF/MRBR, dated 25 Nov 09.
Exhibit D. Letter, Applicant, not dated.
Panel Chair
AF | BCMR | CY2014 | BC 2014 01225
PL 97-252 (8 Sep 82) permitted retiring members to provide SBP coverage for their former spouses under the insurable interest option. It is recommended that the deceased former members record be corrected to reflect that on 1 Mar 86, he elected to change SBP former spouse coverage under the insurable interest option to former spouse coverage under the spouse coverage option, naming the applicant as the eligible former spouse beneficiary, and she concurred in the change. THE BOARD...
AF | BCMR | CY2009 | BC-2009-01754
In support of the application, the applicant submits a copy of her final divorce decree and her former spouse's death certificate. Moreover, there is no divorce decree requiring SBP (perhaps because it was not within court authority to order it at that time). The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states a former military spouse...
AF | BCMR | CY2007 | BC 2007 03737
Even though the SBP was not addressed in the divorce decree, the member could have elected former spouse coverage voluntarily within the first year following the divorce, but failed to do so. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error...
AF | BCMR | CY2010 | BC-2010-02569
The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. DPSIAR states the law in effect at the time of the applicants divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse eligibility; therefore, the fact the divorce decree mentioned the SBP does not provide standing to establish SBP coverage on the applicants behalf. We took notice of the applicant's...
AF | BCMR | CY2012 | BC-2012-01307
If neither the member nor the spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify DFAS—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...
AF | BCMR | CY2011 | BC-2011-04466
_______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. While we do not take issue with the applicants assertion that her divorce decree ordered her deceased former husband to continue coverage for her under the SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. ...
AF | BCMR | CY2012 | BC-2012-01800
On 12 Oct 90, the parties divorced and the applicant was ordered to elect SBP on behalf of his former spouse. Neither party submitted an election for former spouse coverage within the first year of the divorce; however, the member did not request his former spouse be removed as the SBP beneficiary. The complete DPSIAR evaluation is at Exhibit B.
AF | BCMR | CY2010 | BC-2010-00171
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00171 INDEX CODE: 137.04 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouses records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). There is no evidence the applicant or former spouse submitted a valid SBP election to...
AF | BCMR | CY2010 | BC-2010-04512
We took notice of the applicants complete submission in judging the merits of the case, however; we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04512 in Executive Session on 4 Aug...
AF | BCMR | CY2011 | BC-2011-02108
The applicant and service member divorced on 17 Nov 89, and the divorce order directed the service member pay the monthly SBP premiums for the applicant. The complete AFPC/DPSIAR evaluation is at Exhibit B. SAF/MRB Legal Advisor indicates there are no extraordinary facts or equities which merit granting the relief sought, unless the widow relinquishes her right to the annuity. Further complicating this case is the fact that after he remarried, the deceased former member failed to elect...