RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-
01647
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).
___________________________________________________________
APPLICANT CONTENDS THAT:
She needs to set up SBP as stated in the divorce decree.
She was not aware that this was separate from receiving pay
and thought everything was approved in 1995.
In support of her request, the applicant provides a copy of
the divorce decree and a letter from her attorney to the
Defense Finance and Accounting Service (DFAS).
The applicant's complete submission, with attachments, is
at Exhibit A.
___________________________________________________________
STATEMENT OF FACTS:
Data extracted from the Air Force advisory shows the
applicant and the service member divorced on 4 March 1994.
Neither the applicant nor the member made a deemed election
for the SBP within a year of the divorce, as required. The
member remarried on 19 September 1994. He attained age 60
and began drawing retirement pay on 20 September 2009.
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 per AFBCMR
guidance because it involves two potential SBP
beneficiaries. The Defense Enrollment Eligibility
Reporting System (DEERS) reflects the member married on 19
September 1994. Absent a valid election from the member,
DFAS established full spouse coverage for the current
spouse to comply with the law.
The complete DPSIAR evaluation is at Exhibit B.
On 2 February 2012, the applicant was provided advisories
(Exhibit C) 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 2 February 2012 for review and comment within
15 days. As of this date, this office has received no
response (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. We
took notice of the applicants complete submission in
judging the merits of the case; however, the applicant has
not demonstrated that a court of competent jurisdiction has
ruled in this case or directed the AFBCMR to make a
determination as 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 members 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 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 former members 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-2011-01647 in Executive Session on 23 February
2012, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dtd 29 Apr 11, w/atchs.
Exhibit B. Letter, SAF/MRB Legal Advisor, dtd 20 Jan
09.
Exhibit C. Letter, AFPC/DPSIAR, dtd 8 Jun 11.
Exhibit D. Letter, AFBCMR, dtd 2 Feb 12.
Panel Chair
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