RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-02840
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouse’s records be corrected to reflect he made a timely
election for former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The divorce decree ordered that she be maintained as the beneficiary for
the SBP. She believes she should be listed as the beneficiary, not his
current spouse, on the service member’s SBP.
In support of her request, she provides copies documents associated with
her request.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The service member married the applicant on 8 Dec 65. The service member
elected spouse coverage under the SBP based on a reduced level of retired
pay prior to his 1 Apr 83 retirement. They were divorced on 26 Aug 88 and
the applicant was awarded monthly spousal support, but the divorce decree
was silent on the SBP. On 28 May 01, the service member remarried; and
notified the Defense Finance and Accounting Service (DFAS) of the change in
his marital status, and requested his SBP be changed to reflect his current
spouse as the eligible spouse beneficiary.
The remaining relevant facts pertaining to this application are contained
in the letter prepared by the appropriate offices of the Air Force, which
are attached at Exhibit B and C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR did not provide a recommendation because the request involves
two potential beneficiaries.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
SAF/MRB Legal Advisor recommends denial of the applicant’s request. The
Legal Advisor notes the applicant cannot be the SBP beneficiary because
there was not a proper election submitted within one year following the
divorce as required by law.
The complete SAF/MRB Legal Advisor evaluation, with attachments, is at
Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to applicant and the
former service member 30 Nov 10 for review and comment within 30 days. As
of this date, no response has been received by this office (Exhibit D).
_________________________________________________________________
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. In cases involving competing interests
for SBP benefits, this Board has been advised by HQ USAF/JAA that this
Board should not consider such cases unless a court of competent
jurisdiction has ruled in the case or pushes the Board to make a
determination. Although the applicant asserts that she and the service
member’s divorce decree awards her SBP benefits, in our review of the
decree, we do not find that it specifically awards her SBP benefits.
Additionally, since neither she nor the service member executed a deemed
election in her behalf within one year of their divorce, she is not
entitled to the benefits. We also note the service member requested that
his current spouse be listed as the SBP beneficiary, which would have
happened at any rate on the one year anniversary of the marriage due to the
lack of a deemed election in the applicant’s behalf. While the Office of
the Air Force General Counsel has advised the Board is within its authority
to correct a record in circumstances like the instant case, it should do so
only in the most extraordinary of circumstances. Based on the review of
this case by the SAF/MRB Legal Advisor, such extraordinary circumstances
are not present in this case. We accept the SAF/MRB Legal Advisor’s
determination and conclude that it is not in the interest of justice for us
to grant the relief sought by the applicant. 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-
02840 in Executive Session on 27 Jan 11, under the provisions of AFI 36-
2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 28 Jul 10, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 20 Oct 10.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 23 Nov 10.
Exhibit D. Letters, AFBCMR, dated 30 Nov 10, w/atchs.
Panel Chair
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