RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02121 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her former spouse’s record be changed to show he elected former 
spouse coverage under the Survivor Benefit Plan (SBP). 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

She was married to her former late spouse for 20 years and she 
thoroughly enjoyed military life. She states his current spouse 
was not married to him during his military career nor did she 
raise his three children or work so he could get his degree. She 
believes she is more deserving of the benefits than his current 
spouse. 

 

In support of her request, the applicant submits personal 
statements, documentation from DFAS and DD Form 2789, Waiver/Remission of Indebtedness Application. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The decedent and his former spouse were married on 12 February 
1966. 

 

The decedent retired on 1 April 1989 and elected spouse and child 
SBP coverage based on full retired pay. They divorced on 
17 March 1993. 

 

On 28 June 1993, the decedent requested the petitioner be removed 
as his SBP beneficiary. 

 

The decedent married his second spouse on 18 September 1993 and 
on 10 April 1994 he requested DFAS add her to the plan. They 
divorced on 17 April 1995. 

 

 


The decedent married his third spouse on 27 April 1995 and on 
12 November 1996 he requested that DFAS-CL establish SBP coverage 
for her. 

 

The decedent died on 9 April 2011. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR makes no recommendation. DPSIAR states, the 
applicant’s and the decedent’s Voluntary Separation and Property 
Settlement Agreement, incorporated in the divorce decree, 
contained language that if the applicant wishes to retain the 
survivor annuity, she had to pay the full cost of the annuity, 
which was to be deducted in full from her share of his military 
pension. Currently, there is no legal basis for SBP premiums to 
be paid by a former spouse. There is no evidence either party 
submitted a valid former spouse election during the first year 
following their divorce. On 28 June 1993, the former service 
member requested the applicant be removed as his SBP beneficiary. 

 

The former service member died on 9 April 2011 and his widow is 
currently receiving a monthly SBP annuity of $1,175.00 

 

The DPSIAR complete evaluation is at Exhibit B. 

 

SAF/MRB Legal Advisor recommends denial. The Legal Advisor 
states there are no extraordinary facts or equities which merit 
granting the requested relief, unless the competing spouse/widow 
relinquishes her rights to the SBP annuity. This opinion is 
consistent with longstanding AFBCMR and SAF/MR decisions in 
similar cases. While a court is well suited to resolve disputes 
between competing parties, the AFBCMR is not. 

 

He also notes that the applicant provides no claim of error on 
behalf of the Air Force or DFAS. All inference of error or 
injustice falls upon the actions or inaction of applicant and 
decedent spouse. Nothing in the case file supports taking the 
entitlement from the widow entitled to the SBP and granting to 
the former spouse, without the benefit of a judicial hearing. 

 

The SAF/MRB Legal Advisor’s complete evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

 

 

 

 

 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 


 

The applicant states the current spouse of her deceased former 
spouse never spent a day with him during his military career but 
is reaping the benefits that she earned. 

 

She is in debt to the Air Force for $3,537.00 all of which is 
accruing interest. She holds the Air Force and DFAS totally 
responsible for this situation. She feels the decision to deny 
her SBP is unjust. She has been receiving her former spouse’s 
pension since 1993, she has a military ID card and TRICARE 
insurance - all three of which she has earned. She is being 
denied SBP because of a mistake DFAS and the Air Force has made 
by not upholding Air Force regulation (if you are married to a 
military man/woman for 15 years or more you are entitled to all 
benefits). 

 

Applicant’s complete response, with attachments, 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. The 
applicant has not demonstrated that extraordinary circumstances 
exist that are required for this Board to grant relief in cases 
of competing SBP beneficiaries. We took notice of the 
applicant’s complete submission in judging the merits of the 
case. We do not take issue with the applicant’s assertion that 
she believes she is deserving of the SBP annuity. However, in 
the absence of evidence that there was a “deemed election” by the 
applicant within one year after the divorce, the Board assumes 
the former service member’s current spouse gained entitlement to 
the benefit by operation of law. Since the applicant has failed 
to demonstrate that extraordinary circumstances exist that would 
justify correction of the record by this Board, we can only grant 
the relief sought if the applicant provides proof of a timely 
election or the former service member’s current spouse provides 
notarized consent relinquishing her entitlement to the benefit. 
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 the evidence presented did not 
demonstrate the existence of an 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-2011-02121 in Executive Session on 29 March 2011, under 
the provisions of AFI 36-2603: 

 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-02121 was considered: 

 

 Exhibit A. DD Form 149, dated 31 May 2011, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 1 August 2011. 

 Exhibit C. Letter, SAF/MRB, dated 7 March 2012. 

 Exhibit D. Letter, AFBCMR, dated 8 March 2012. 

 Exhibit E. Letter, Applicant, dated 12 March 2012, w/atchs.