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AF | BCMR | CY2011 | BC-2011-02108
Original file (BC-2011-02108.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02108 

 

(FMR SVC MBR) COUNSEL: NONE 

 

(APPLICANT) 

 

 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: 

 

She was told she did not file the divorce decree with the proper 
office. 

 

In support of her request, the applicant provides a copy of the 
former service member’s DD Form 214 and death certificate, their 
marriage certificate, and a copy of their divorce decree. 

 

The applicant's complete submission, with attachment, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant and former service member were married on 
21 Apr 58. The service member elected spouse and child SBP 
coverage based on a reduced level of retired pay prior to his 1 
Jul 78 retirement. Their youngest child lost eligibility to the 
SBP due to age in Jun 82. 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 
service member remarried on 9 Jun 93, but failed to request SBP 
spouse coverage on her behalf, but his spouse became the eligible 
beneficiary a year after their marriage by an operation of law. 
The service member died on 3 May 11. 

 


The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force and the SAF/MRB Legal Advisor, which are attached at 
Exhibits B and C. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR states that since the request involves two potential 
beneficiaries, and based on the guidance by the AFBCMR, it did 
not provide a recommendation. 

 

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. While a court is 
well suited to resolve disputes between competing parties, the 
AFBCMR is not. 

 

The applicant provides some allegation, but little evidence of an 
error on behalf of the Air Force or DFAS. The only claim of 
injustice appears to be the applicant was unaware of the SBP 
election requirements. Though the widow has yet to apply for 
SBP, neither of the applicant’s allegations merit taking the 
entitlement from the widow and granting it to the former spouse 
without the benefit of a judicial hearing. 

 

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 and SAF/MRB Legal Advisor evaluations, 
along with copies of two redacted legal opinions pertaining to 
the issue of competing spouse beneficiaries, were forwarded to 
the applicant and the deceased former service member’s widow on 
3 Jan 12 for review and comment within 30 days (Exhibit D). 

 

In response, the applicant indicates that she sent information to 
DFAS twice. She was not aware that she needed to send the 
divorce decree to a different office. She was depending on the 
SBP to supply her income. 

 

The applicant’s complete response is at 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 applicant’s complete submission in judging the 
merits of the case. This Board has been previously advised it 
should not consider cases, such as the applicant’s, 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 
SAF/MRB Legal Advisor evaluation, 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 failed to elect coverage 
for his current spouse who is now the eligible SBP beneficiary as 
a matter of law. 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 
applicant’s 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 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-2011-02108 in Executive Session on 9 Feb 12, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-02108 was considered: 

 

 Exhibit A. DD Form 149, dated 15 Jun 11, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 20 Jul 11. 

 Exhibit C. Letter, SAF/MRB Legal Advisor, dated 7 Nov 11. 

 Exhibit D. Letter, AFBCMR, dated 3 Jan 12, w/atchs. 

 Exhibit E. Letter, Applicant, dated 28 Jan 12. 

 

 

 

 

 

 Panel Chair 



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