RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-03175
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to receive her ex-husbands Survivor Benefit Plan
(SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She did not know her ex-husbands records were not updated to
reflect her as the former spouse SBP beneficiary. She believes
if she had been told the correct information in the beginning she
would not be in this situation now. She needs to know if she can
count on the SBP annuity as income which may allow her to stay in
her house or, if not, she may have to move to a rental property.
In support of her request, the applicant provides a copy of her
marriage certificate, a copy of her identification card, a copy
of DD Form 2293 (Application for Former Spouse Payments from
Retired Pay, and a copy of her settlement package.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Additional relevant facts pertaining to this application,
extracted from the applicants military records, are contained in
the letters prepared by the appropriate offices of the Air Force.
Accordingly, there is no need to recite these facts in this
Record of Proceedings.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR does not provide a recommendation because it involves
two potential SBP beneficiaries.
The DPSIAR complete evaluation is at Exhibit B.
The SAF/MRB Legal Advisor recommends denial. The Legal Advisor
states that there is no evidence either party requested SBP
coverage within one year of the divorce as required by law. If
there were not a competing eligible beneficiary, the Legal
Advisor would recommend correcting the record, but there is. The
Legal Advisor would also recommend correcting the record if the
current spouse gives her notarized consent. Absent that consent,
there is no extraordinary circumstance that supports not
enforcing the deemed election requirement given the fact that
correcting the record in the manner requested will deprive the
members current spouse benefits to which she is legally
entitled.
The SAF/MRB complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The former member states he agrees with the SAF/MRB Legal
Advisory opinion; however, he points out he was not married to
his former spouse at the time he married his current spouse.
The applicants complete submission is at 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 an error or injustice. We took
notice of the applicants complete submission in judging the
merits of the case, however, we accept the determination of the
SAF/MRB Legal Advisor and adopt his rationale as the basis for
our conclusion that the applicant has not demonstrated that
extraordinary circumstances exist that are required for this
Board to grant relief in cases of competing SBP beneficiaries.
Therefore, based on the legal guidance the Board has been given,
we can only grant the relief sought if the former members spouse
provides notarized consent relinquishing the benefit. Otherwise,
the applicants only recourse is to return to a court of law to
have the issue decided. Therefore, in the absence of evidence to
the contrary, we find no basis to recommend granting the
requested relief.
_________________________________________________________________
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-2010-03175 in Executive Session on 23 Feb 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Aug 10, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 8 Oct 10.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 23 Nov 10.
Exhibit D. Letter, AFBCMR, dated 30 Nov 10.
Exhibit E. Letter, Former Member, dated 3 Dec 10, w/atchs.
Panel Chair
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