RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00737
(FORMER MEMBER) COUNSEL: NONE
(APPLICANT) HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses record be corrected to reflect she is the
former spouse beneficiary under the Survivor Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
According to the divorce decree, her former spouse was to
maintain SBP coverage for her as the former spouse beneficiary.
He has not provided proof that he has done so in accordance with
the requirements of the decree.
In support of her request, the applicant provides copies of
court documents related to her divorce from the former service
member.
The applicants complete submission, with attachment, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted
from the former members military personnel records, are
described in the letters prepared by the appropriate office of
the Air Force and the AFBCMR Legal Advisor, which are at
Exhibits B and C. Therefore, there is no reason to recite these
facts in this Record of Proceedings.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR indicates the former service member and the
applicant were married on 12 Apr 80 and he elected spouse and
child SBP coverage based on full retired pay prior to his
1 Aug 96 retirement. Their divorce was finalized on 3 Jan 07,
and in the separation agreement, incorporated in the divorce
decree, the member agreed the applicant would be deemed as the
irrevocable beneficiary of the SBP. However, there is no
evidence either party submitted a valid former spouse election
within the first year following their divorce as the law
requires. The member married S____ on 8 Sep 07, but did not
notify DFAS of the change in his marital status or request
spouse coverage be established on her behalf. Nevertheless,
S____ became the eligible spouse beneficiary by operation of the
law on the first anniversary of their marriage. Premiums for
spouse SBP coverage continued to be deducted from the former
service members retired pay until 18 Nov 10, when DFAS-CL
updated the members beneficiary information and issued him a
refund of premiums deducted after the divorce. Coverage was
retroactively reinstated, effective 8 Sep 08, naming S____ as
the eligible spouse beneficiary. S____ would receive $1,093.00
per month in the event of the former service members death.
A complete copy of the AFPC/DPSIAR evaluation is at Exhibit B.
The AFBCMR Legal Advisor recommends denial, indicating there are
no extraordinary facts or equities which merit granting the
requested relief, unless the competing spouse relinquishes her
rights. The applicant provides little to no evidence of an
error on behalf of the Air Force or DFAS. The only claim of
injustice is the applicant is not named as the beneficiary
according to the divorce decree. Even if the member did not
comply with the court order, the applicant had the opportunity
herself to request a deemed election within one year of the
divorce (AFI 36-30-06, paragraph 6.4.6; and 10 USC 1450(f)(3)).
A complete copy of the AFBCMR Legal Advisor evaluation is at
Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant contends that she had no idea that she was
required to provide a written valid former spouse election. She
believed her divorce decree to be a legal document that would
protect her rights. Secondly, her former spouse would have no
inclination to submit paperwork on her behalf or inform her of
the need for this documentation. If she had known about this
requirement, she would have never jeopardized her potential
future income by neglecting to submit proper documentation.
________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by
existing law or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. We took notice
of the applicant's complete submission, including her response
to the advisory opinions, in judging the merits of the case;
however, we agree with the opinion and recommendation of the
AFBCMR Legal Advisor and adopt his rationale as the basis for
our conclusion the applicant has not been the victim of an error
or injustice. Therefore, in the absence of evidence to the
contrary, we find no basis for us to recommend granting the
relief sought in this application.
________________________________________________________________
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-2011-00737 in Executive Session on 6 Dec 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Feb 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 24 Mar 11.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 2 Nov 11.
Exhibit D. Letter, AFBCMR, dated 3 Nov 11.
Exhibit E. Letter, AFBCMR, dated 29 Nov 11.
Exhibit F. Electronic Mail, Applicant, dated 29 Nov 11.
Panel Chair
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