RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-00982
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
The decedents records be corrected to reflect he made a timely
election for former spouse coverage under the Survivor Benefit
Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Their divorce decree awarded her beneficiary to the SBP.
In support of her request, the applicant provides copies of her
divorce decree, the decedents death certificate and his DD Form
214, Certificate of Release or Discharge from Active Duty.
Applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 7 Nov 78, the service member contracted his initial enlistment
in the Regular Air Force. He served as an Aerospace Ground
Equipment Craftsman. He retired on 1 Dec 98. He served
20 years, and 24 days of active service.
The remaining relevant facts pertaining to this application are
contained in the letter prepared by the appropriate office of the
Air Force which is attached at Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR states that based on guidance issued by the AFBCMR
they forwarded this application without a recommendation because
it involves two potential SBP beneficiaries.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
The SAF/MRB Legal Advisor recommends denial. The Legal Advisor
states that despite the court order directing the member to
convert to former spouse coverage, federal law makes the election
unavailable when the deemed election is not timely effected. If
there were not a competing eligible beneficiary, or there was
notarized consent of the current spouse, he would recommend
correcting the record, but there is a competing spouse and no
consent. He sees no extraordinary circumstances that would
support not enforcing the deemed election requirement given the
fact correcting the record in this manner will deprive the
current spouse of benefits to which she is legally entitled.
The complete SAF/MRB Legal Advisors evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 23 Jun 10, for review and comment within 30 days.
As of this date, no response has been received by this office.
_________________________________________________________________
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 an error or an injustice. We took
notice of the applicants complete submission in judging the
merits of the case; however, we agree with the opinion of the
SAF/MRB Legal Advisor and adopt his rationale as the basis for
our conclusion that the applicant has failed to sustain her
burden of proof of the existence 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 AFBCMR Docket
Number BC-2010-00982 in Executive Session on 14 Sep 10, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 Mar 10, w/atchs.
Exhibit B. Applicants Military Personnel Records.
Exhibit C. Letter, HQ AFPC/DPSIAR, dated 10 May 10.
Exhibit D. Letter, SAF/MRB Legal Advisor, dated 21 Jun 10,
w/atchs.
Exhibit E. Letter, AFBCMR, dated 23 Jun 10, w/atchs.
Panel Chair
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