RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04515 

COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

His Survivor Benefit Plan (SBP) election be changed to cover his 
former spouse. 

 

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APPLICANT CONTENDS THAT: 

 

His divorce decree directed he provide SBP benefits to his former 
spouse. However, he was unaware he had to specify a former 
spouse designation within one year of his divorce. 

 

In support of his appeal, the applicant provides copies of his DD 
Form 214, Certificate of Release or Discharge from Active Duty; 
two Retiree Account Statements; and his divorce decree. 

 

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

 

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STATEMENT OF FACTS: 

 

The applicant is a former member of the Idaho Air National Guard 
who was progressively promoted to the grade of senior master 
sergeant (E-8) effective 15 February 1990. According to the DD 
Form 214 provided by the applicant, he was released from active 
duty on 30 September 1995 and retired effective 1 October 1995, 
for retirement with less than 20 years service under the 
Temporary Early Retirement Authority (TERA). 

 

The remaining relevant facts, extracted from the member’s 
military service records, are contained in the Air Force advisory 
opinion at Exhibit B. 

 

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AIR FORCE EVALUATION: 

 

DFAS-RPB-TQAL/CL (Defense Finance and Accounting Service, 
Legislation and Policy, Retired and Annuity Pay) recommends 
denial. DFAS states that at the time of the applicant’s 


retirement, he elected coverage for his then spouse. On 10 April 
1996, he and his former spouse divorced. The divorce decree 
directed he provide SBP coverage for his former spouse. However, 
neither the applicant, nor his former spouse ever contacted DFAS 
until 2010 regarding their divorce and court-ordered SBP 
election. As this was well after the one year period specified 
in law to make a former spouse SBP election, the request was 
denied. 

 

DFAS indicates that should the Board correct the record to show 
that a timely former spouse election was made; the coverage will 
be retroactively established. 

 

The complete DFAS evaluation is at Exhibit B. 

 

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BCMR LEGAL CONSULTANT EVALUATION: 

 

The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor 
states the applicant has provided little information with his 
application, but it appears from his Retiree Account Statement 
that he is married. If he has been married to his second spouse 
for a year, that person is legally entitled to SBP despite the 
court order. Although the Air Force Deputy General Counsel for 
Military Affairs has advised the AFBCMR that it can, in 
extraordinary cases, change the record to provide SBP to the 
first spouse when there is a second spouse legally entitled to 
it; the Administrative Law Division of the Office of the Judge 
Advocate General has also consistently advised that the matter of 
SBP entitlement between competing spouses should be referred to 
civilian courts for resolution. 

 

The BCMR Legal Advisor states that if there were not a competing 
eligible beneficiary, he would recommend correcting the record. 
He would also recommend correcting the record if the second 
spouse gives her notarized consent. Absent that consent, he sees 
no extraordinary circumstances here that would support not 
enforcing the deemed election requirement given the fact that 
correcting the record in the manner requested will deprive the 
second spouse of SBP coverage to which she is legally entitled. 
He would remind the Board if they are inclined to grant the 
requested relief, they should not reach a final decision until 
the view of the second spouse is solicited and considered. 

 

The complete BCMR Legal Advisor’s evaluation, with attachments, 
is at Exhibit D. 

 

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APPLICANT'S REVIEW OF AIR FORCE AND BCMR LEGAL CONSULTANT’S 
EVALUATIONS: 

 

The applicant responds with numerous questions that would be more 
appropriately answered by the Air Force office of primary 
responsibility or DFAS, once the Board has rendered a decision on 
his appeal. 

 

The applicant’s complete response is at Exhibit F. 

 

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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 
this case; however, we agree with the opinion and recommendation 
of BCMR Legal Advisor and adopt his rationale as the basis for 
our decision that the applicant has failed to sustain his burden 
that he has suffered either 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. 

 

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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. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-04515 in Executive Session on 9 August 2011, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2010-04515: 

 

 Exhibit A. DD Form 149, dated 30 Nov 10, w/atchs. 

 Exhibit B. Letter, DFAS-RPB-TQAL/CL, dated 11 Jan 11. 

 Exhibit C. Letter, SAF/MRBR, dated 18 Feb 11. 

 Exhibit D. Letter, BCMR Legal Advisor, dated 18 Mar 11. 

 Exhibit E. Letter, AFBCMR, dated 24 Mar 11. 

 Exhibit F. Letter, Applicant, dated 7 Apr 11. 

 

 

 

 

 

 Panel Chair