RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-02160
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show he made an election for former
spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
His retired pay distribution and SBP coverage do not correctly
implement the instructions in the divorce decree.
In support of his request, the applicant submits copies of his
divorce decree, marriage certificate, DD Form 2656-1, Survivor
Benefit Plan (SBP) Election Statement for Former Spouse Coverage,
DD Form 2894, Designation of Beneficiary Information, retired
account statements and letters to and from the Defense Finance
and Accounting Service (DFAS).
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and former spouse were married on 3 September 1965
and he declined SBP coverage. The applicant elected full spouse
only SBP coverage during the open enrollment authorized by Public
Law (PL) 101-189 (1 April 1992 thru 31 March 1993). The parties
divorced on 27 March 2007 and incorporated in the divorce decree,
the applicant was ordered to continue SBP on his former spouse.
Neither party submitted a valid election change during the
required time limit following their divorce. On 20 October 2007,
the applicant remarried. On 19 June 2009, he notified DFAS of
the change in his marital status and requested DFAS change his
arrears of pay (AOP) beneficiary to his current spouse. In
addition to the AOP change, DFAS updated the applicants spouse
only SBP beneficiary to reflect his current spouse, as the law
required.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR states it is forwarding this request without a
recommendation because it involves two potential SBP
beneficiaries.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The SAF/MRB Legal Advisor recommends denial. The Legal Advisor
states that despite the court order, 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 Advisor evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the evaluations were forwarded to the applicant on
13 December 2010 for review and comment within 30 days. As of
this date, no response has been received by this office. (Exhibit
E).
_________________________________________________________________
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; however, 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 an injustice. Neither the applicant nor the former
spouse submitted a valid election within the one-year period
required by law to establish former spouse coverage.
Additionally, only in the most unique of circumstances would the
Board make a ruling on a case that involves two claimants to a
benefit that only one of them can receive. However, if the legal
beneficiary submits a notarized statement relinquishing her
entitlement to the SBP, the Board may be willing to reconsider
the applicants appeal in consideration of this evidence. In
view of the foregoing, 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; 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-2010-02160 in Executive Session on 25 January 2011,
under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 Apr 10, w/atchs.
Exhibit B. Applicants Master Personnel Record.
Exhibit C. Letter, AFPC/DPSIAR, dated 2 Aug 10.
Exhibit D. Letter, SAF/MRB Legal Advisor, dated 17 Oct 10.
Exhibit E. Letter, AFBCMR, dated 13 Dec 10, w/atchs.
Panel Chair
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