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 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 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 members 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 applicants 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 members 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 applicants 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 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
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
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 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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