RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00688
(DECEASED) COUNSEL: NONE
(APPLICANT)
HEARING DESIRED: NOT INDICATED
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses records be corrected to reflect he made a
timely election for former spouse coverage under the Survivor
Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She is a senior citizen and relies on the monies from the
payments of her former spouses retired pay. She believes her
payment should be continued.
In support of her request, she provides copies documents
associated with her request.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The service member married the applicant on 27 May 66. The
service member elected spouse and child coverage under the SBP
based on full retired pay prior to his 1 Dec 83 retirement. They
were divorced on 20 Dec 84 and the divorce decree was silent on
the SBP. A Stipulation Order dated 4 Jun 91 reflects the
servicemember elected to provide former spouse SBP coverage for
the applicant. The service member remarried on 28 Jun 96. He
died on 15 Dec 10.
The remaining relevant facts pertaining to this application are
contained in the letters prepared by the appropriate offices of
the Air Force, which are attached at Exhibits B and C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR did not provide a recommendation because the request
involves two potential beneficiaries. However, they note a
persons eligibility to receive spouse annuity payments under SBP
terminates upon divorce. There is no evidence the service member
or the applicant submitted a valid election for former spouse
coverage under the insurable interest option or under the
implementation of Public Law 99-145 which authorized divorced
participants to elect coverage for former spouses.
The complete AFPC/DPSIAR evaluation is at Exhibit C.
SAF/MRB Legal Advisor recommends denial of the applicants
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 members widow on 23 Jun 11 for review and
comment within 30 days (Exhibit D).
In response to the Air Force evaluations, the service members
widow has submitted an application for the SBP annuity
(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 the applicant has not demonstrated that
extraordinary circumstances exist that are required for this
Board to grant relief in cases of competing SBP beneficiaries.
While we are sympathetic to the applicants situation, the now
deceased service member failed to elect 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 deceased service members widow gained
entitlement to the benefit as his current spouse due to operation
of law; and, she has submitted an application for benefits.
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 the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and 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-2011-00688 in Executive Session on 27 Oct 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 17 Feb 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 25 Mar 11.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 21 Jun 11.
Exhibit D. Letters, SAF/MRBC, dated 23 Jun 11, w/atchs.
Exhibit E. Letter, Competing Beneficiary, dated 7 Jul 11
Panel Chair
AF | BCMR | CY2011 | BC-2011-02108
The applicant and service member divorced on 17 Nov 89, and the divorce order directed the service member pay the monthly SBP premiums for the applicant. The complete AFPC/DPSIAR evaluation is at Exhibit B. SAF/MRB Legal Advisor indicates there are no extraordinary facts or equities which merit granting the relief sought, unless the widow relinquishes her right to the annuity. Further complicating this case is the fact that after he remarried, the deceased former member failed to elect...
AF | BCMR | CY2011 | BC-2010-03013
There is no evidence the service member or the applicant submitted a request for former spouse coverage within one year following their divorce. The complete SAF/MRB Legal Advisor evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant requests the Board honor the divorce decree that deemed her the beneficiary under the SBP. While we do not take issue with the applicant’s...
AF | BCMR | CY2011 | BC-2011-02192
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02192 COUNSEL: NONE HEARING DESIRED: NO ___________________________________________________________ __ APPLICANT REQUESTS THAT: Her former spouses records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). The service member elected spouse only coverage under the SBP at full retirement pay. Since the applicant...
AF | BCMR | CY2011 | BC-2011-00062
She indicates there is no evidence the deceased former member elected former spouse coverage for any of his former spouses. In Dec 92, DFAS received an SBP Open Enrollment Election form from the member requesting to change the applicants coverage from spouse to former spouse. A complete copy of the AFRBA Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant contends...
AF | BCMR | CY2009 | BC-2009-02010
There is no evidence the member submitted a valid former spouse election within one year following their divorce. The Legal Advisor states the widow became the SBP beneficiary by operation of law when the member died in Jun 05 and is currently receiving SBP payments. We note the opinion and recommendation of the SAF/MRB Legal Advisor that as an operation of law the member’s spouse is the legal beneficiary unless a legally effective election or deemed election (pursuant to a court order)...
AF | BCMR | CY2009 | BC-2009-01754
In support of the application, the applicant submits a copy of her final divorce decree and her former spouse's death certificate. Moreover, there is no divorce decree requiring SBP (perhaps because it was not within court authority to order it at that time). The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states a former military spouse...
AF | BCMR | CY2011 | BC-2011-02121
The SAF/MRB Legal Advisors complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the current spouse of her deceased former spouse never spent a day with him during his military career but is reaping the benefits that she earned. She is being denied SBP because of a mistake DFAS and the Air Force has made by not upholding Air Force regulation (if you are married to a military...
AF | BCMR | CY2010 | BC-2010-04680
Her divorce decree lists her as the SBP beneficiary to receive the former members SBP benefits. 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. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure of she and her...
AF | BCMR | CY2011 | BC-2011-03077
There is no evidence the applicant submitted a valid election to voluntarily change spouse to former spouse SBP coverage within the first year following their divorce as the law requires. On 25 May 11, a modification of the applicants Dissolution of Marriage order was filed, instructing him to make his former spouse the sole and irrevocable beneficiary of his SBP annuity. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates that...
AF | BCMR | CY2010 | BC-2010-02857
Neither party submitted a valid election change during the required time limit following their divorce. The complete SAF/MRB Legal Advisors evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicants 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. ...