RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-02569
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
Her deceased former husband's records be corrected to reflect the deceased member elected coverage on her behalf.
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APPLICANT CONTENDS THAT:
The deceased member signed and mailed the original application for spousal annuity and it is confirmed in the divorce document. After the divorce, he changed the election without her knowledge.
In support of the request, the applicant submits copies of her passport, Birth Certificate, military identification card, Certificate of Death, Marriage License, Divorce Decree, and a letter to her congressional representative.
The applicant's complete submission, with attachments, is attached at Exhibit A.
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STATEMENT OF FACTS:
The deceased member and applicant were married on 7 November 1956 and he elected child only coverage (with Option 4) under the Retired Servicemans Family Protection Plan (RSFPP) prior to his retirement on 1 April 1972. The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. The parties divorced on 18 October 1972, and although unenforceable, the divorce ordered the deceased member to maintain SBP life insurance on the applicants behalf. Spouse SBP premiums continued until the passage of PL 94-496 on 14 October 1976, which allow members to suspend spouse premiums if the marriage ends in death or divorce. There is no evidence an election to extend SBP coverage to the applicant was made during the open enrollment opportunities provided by enactment of PLs 98-94 or 99-145. The youngest child lost eligibility under the SBP in July 1988 and the RSFPP in March 1989. The deceased member died on 20 June 1996.
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AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial. 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. However, the deceased member could have elected to change spouse to former spouse coverage under the options in 1985-1986, but he did not. Furthermore, the applicant has failed to provide a reason for her 14-year delay in requesting corrective action, subjecting her claim to the six-year statute of limitations.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
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APPLICANTS REVIEW OF AIR FORCE EVALUATION:
The applicant states she waited all these years to submit a request to the Board because she never knew this avenue was available. She contacted many people over the years and was told there was nothing she could do about her situation. She contacted the Air Force, the Defense Finance and Accounting Service (DFAS), attorneys, and even the former Governor of Arizona; however, no one told her she could file an application to the Board for Correction of Military Records. She requests the six-year statute of limitation be waived because she had no idea she could file.
The applicant's complete response is at Exhibit E.
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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 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 Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion 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 his request.
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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.
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The following members of the Board considered AFBCMR Docket Number BC-2010-02569 in Executive Session on 17 November 2010, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Jun 10, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 2 Sep 10.
Exhibit D. Letter, SAF/MRBR, dated 1 Oct 10.
Exhibit E. Applicant's Response, dated 26 Oct 10
Panel Chair
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