RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-01343
COUNSEL: NONE
HEARING DESIRED: NO
___________________________________________________________
__
APPLICANT REQUESTS THAT:
She be awarded her former spouses Survivor Benefit Plan
(SBP) annuity.
___________________________________________________________
__
APPLICANT CONTENDS THAT:
She was awarded the SBP annuity as a part of the divorce
settlement. She was not informed or aware that additional
forms were required to be completed within 12 months of the
divorce being finalized for the SBP annuity. The error was
not discovered until after the death of her former spouse.
In support of her request, the applicant provides a copy of
the members DD Form 214, Certificate of Release or
Discharge from Active Duty, a copy of the divorce decree
and a copy of the members death certificate.
The applicant's complete submission, with attachments, is
at Exhibit A.
___________________________________________________________
__
STATEMENT OF FACTS:
The decedent retired on 1 March 1988 and died on 4 November
2010.
The remaining relevant facts pertaining to this application
are contained in the letter prepared by the appropriate
office of the Air Force, which is attached at Exhibit B.
___________________________________________________________
__
AIR FORCE EVALUATION:
AFPC/DPSIAR does not provide a recommendation because it
involves two potential SBP beneficiaries. They do note
that Defense Enrollment Eligibility Reporting System
(DEERS) records show the members spouse at the time of his
death is currently receiving the SBP monthly annuity. The
member married his surviving spouse on 4 October 2009 and
on 2 September 2010 he submitted an SBP Election Change
Certificate requesting SBP coverage for her.
The complete DPSIAR evaluation is at Exhibit C.
On 19 Dec 11, the applicant was provided advisories
prepared by the SAF/MRB Legal Advisor, HQ USAF/JAA, and
SAF/GCM on similar cases considered by the Board. The
Board has been advised that it should not consider cases
involving disputed claims unless a court of competent
jurisdiction has ruled in the case or pushes the AFBCMR to
make a determination in the case.
___________________________________________________________
__
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 19 December 2011, for review and comment within
30 days. As of this date, this office has received no
response (Exhibit E).
___________________________________________________________
__
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 an error or injustice. We
took notice of the applicants complete submission in
judging the merits of the case. This Board has been
previously advised it should not consider cases, such as
the applicants, involving disputed claims unless a court
of competent jurisdiction has ruled in the case or pushes
the AFBCMR to make a determination in the case. The
applicant asserts that the divorce decree issued to her and
the deceased former member awarded her benefits under SBP.
However, she has not provided any evidence that she or the
deceased former member submitted a valid former spouse
election during the first year following their divorce. As
noted in the 27 January 2009 opinion of the SAF/MRB Legal
Advisor, federal law makes the election unavailable when
the deemed election is not timely effected. Further
complicating this case is the fact that after he remarried,
the deceased former member elected coverage for his current
spouse who is now receiving the SBP benefits.
Consequently, this is now a case involving a disputed
claim. Since there has been no ruling by a court of
competent jurisdiction regarding this issue, we do not find
that any basis exists for us to decide this case. In our
view, the applicants only recourse is to return to a court
of competent jurisdiction to have the issue decided.
Therefore, in the absence of evidence to the contrary, we
must deny the relief sought in this application.
___________________________________________________________
__
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-2011-01343 in Executive Session on 24 January
2012, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 Apr 11, w/atchs.
Exhibit B. Master Personnel Record.
Exhibit C. Letter, AFPC/DPSIAR, dated 15 May 11.
Exhibit E. Letter, AFBCMR, dated 19 Dec 11 w/ atchs.
Panel Chair
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