RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER: BC-2010-04680
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be named as the former spouse to receive the Survivor Benefit
Plan (SBP) benefits.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was divorced on 22 Apr 98. Her divorce decree lists her as
the SBP beneficiary to receive the former members SBP benefits.
Shortly after the divorce, she went to Portsmouth Naval Shipyard
and spoke with the personnel staff and they confirmed that she
was named as the beneficiary. She was told that she did not need
to do anything further and that she would continue to be listed
as the beneficiary. On 10 Dec 10, she learned that her former
husband listed his current spouse as the SBP beneficiary which is
in violation of the divorce decree. She was not notified of any
change in her status as the beneficiary to his retirement
benefits and insurance. She is requesting the record be
corrected to reflect her as the permanently named SBP beneficiary
of his military benefits.
In support of her request, the applicant provides a copy of her
separation document and copies of her divorce decree.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application 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 based on the AFBCMR
guidance, dated 18 Mar 04, regarding two potential SBP
beneficiaries.
The DPSIAR complete evaluation is at Exhibit B.
SAF/MRB Legal Advisor recommends denial. The Legal Advisor
states that the applicant cannot be the SBP beneficiary because
she did not file the required deemed election. The applicant may
not have known of the need to request coverage but that does not
change the legal requirements. The Legal Advisor notes that if
there were not a competing eligible beneficiary, he would
recommend correcting the record, but there is. The Legal Advisor
would also recommend correcting the record if the second spouse
gave her notarized consent; however, absent that consent, there
is no extraordinary circumstances here that would support not
enforcing the deemed election requirement given the fact that
correcting the record in the manner request will deprive the
members current spouse benefits to which she is legally
entitled.
The SAF/MRB Legal Advisors evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 7 Jun 11 for review and comment within 30 days. As
of this date, this office has received no response.
_________________________________________________________________
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 the applicant has not demonstrated that the
extraordinary circumstances exist that are required for this
Board to grant relief in cases of competing SBP beneficiaries.
While we do not take issue with the applicants assertion that
her divorce decree ordered her former husband to continue
coverage for her under SBP, he failed to convert the coverage to
former spouse coverage within one year of their divorce as
required by law. Regrettably, the applicant also failed to
execute a deemed election for coverage within the one year
timeframe. Consequently, the current spouse gained entitlement
to the benefit as an operation of law. Since the applicant has
failed to demonstrate that extraordinary circumstances existed
that would override the failure of she and her former husband to
effect the former spouse coverage, based on the legal guidance
the Board has been given, we can only grant the relief sought if
the current 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-2010-04680 in Executive Session on 19 Jul 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 Dec 10, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 27 Dec 10.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 11 May 11.
Exhibit D. Letter, AFBCMR, dated 7 Jun 11.
Panel Chair
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