RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02857 

 

 COUNSEL: 

 HEARING DESIRED: NOT INDICATED 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

She be authorized to deem her former spouse SBP election and 
apply for the annuity awarded by her divorce decree. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

They were not aware of the law which required them to make a 
deemed election. The deceased member did not notify Defense 
Finance and Accounting Service (DFAS) of their divorce as 
evidenced by the fact she remained the beneficiary for unpaid 
compensation and SBP. Obviously, if they were aware that a 
deemed election was required; this would have been completed on 
8 June 1995. 

In support of her request, the applicant submits copies of her DD 
Form 2656-10/7, Survivor Benefit (SBP)/Reserve Component (RC) SBP 
Request for Deemed Election; her SF Form 1199A, Direct Deposit 
Sign-Up Form; her W-4P, Withholding Certificate for Pension or 
Annuity Payments; her divorce decree and Certificate of Death. 

 

The applicant's complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The deceased member and the applicant were married on 5 April 
1980 and he elected child SBP coverage based on full-retired pay 
prior to his retirement on 1 October 1993. The parties divorced 
on 7 June 1995. Neither party submitted a valid election change 
during the required time limit following their divorce. The 
deceased member married on 24 June 2000, but did not request DFAS 
establish SBP coverage on his new wife’s behalf. The youngest 
child lost eligibility in July 2007. The deceased member’s pay 
record continued to reflect the applicant’s date of birth as the 
eligible beneficiary and SBP premiums continued to be deducted 
from his retired pay until his 12 July 2010 death. The current 
spouse has not submitted a request for SBP annuity. 

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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 B. 

 

_________________________________________________________________ 

 

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’s evaluation is at Exhibit C. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant’s counsel states that paragraph 13; page 20 of the 
divorce decree shows the deceased member acknowledged his 
obligation by submitting this as an election for SBP for his 
spouse. As proof the Air Force received this document, it shows 
a series of monthly payments credited to her account through 
direct deposit. The DFAS shows where the check came from which 
proves that the former spouse was receiving retirement benefits 
as outlined in the divorce decree. The fact that DFAS honored 
that obligation shows that they had received the document, which 
also dealt with SBP. 

 

The applicant’s counsel complete response, with attachments, 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 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 the rationale expressed, 
as the basis for our conclusion the applicant has not sustained 
her burden of having suffered either an error or an injustice. 
While counsel argues the Judgment Entry Decree for Divorce 
forwarded to DFAS authorized the former spouse retired pay, he 
also believes this same instrument should constitute a deemed 
election for SBP. Although we note counsel’s contentions, we do 
not believe the Judgment Entry Decree for Divorce constitutes a 
valid election. 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 applicant’s 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-2010-02857 in Executive Session on 5 January 2011, 
under the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2010-02857 was considered: 

 

 Exhibit A. DD Form 149, dated 26 Jul 10, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 30 Aug 10. 

 Exhibit C. Letter, SAF/MRB Legal Advisor, dated 29 Oct 10. 

 Exhibit D. Letter, AFBCMR, dated 15 Nov 10, w/atchs. 

 Exhibit E. Applicant's Response, dated 7 Dec 10, w/atchs. 

 

 

 

 

 

 Panel Chair