RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-02149
(SERVICE MBR) COUNSEL:
(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:
The divorce decree ordered that she be maintained as the former
spouse beneficiary for the SBP. She was not aware she had to
submit a deemed election.
In support of her request, the applicant provides a statement of
counsel, a copy of the divorce decree, and a supporting statement
from the service member indicating his consent and requesting the
applicants request be granted.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former service member elected spouse and child coverage under
the SBP based on full retired pay prior to his 1 Nov 04
retirement. On 17 Jul 08, the applicant and the service member
were divorced; the divorce decree required the applicant be
maintained as the beneficiary for the SBP. There is no evidence
the applicant or the service member submitted an election for
former spouse coverage under the SBP within one year following
their divorce. The service member remarried on 30 Aug 08. There
is no evidence the service member submitted a request for spouse
coverage on his current spouses behalf. However, she became the
eligible spouse beneficiary as a matter law on the first
anniversary of their marriage.
On 26 Jan 12, the Board staff notified the current spouse of the
pending application before the Board which may affect her
interests. Copies of the AFPC/DPSIAR advisory opinion described
below, as well as legal opinions prepared by HQ USAF/JAA and
SAF/GCM pertaining to the issue of competing spouse claimants for
SBP benefits were also provided for review and response within 30
days (Exhibit C). In response, she indicates that she does not
relinquish her right as the beneficiary of the SBP. She believes
it was the responsibility of her husbands former spouse and
attorney to submit the election for SBP within the time allotted,
not her husband (Exhibit D).
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR indicates that based on guidance from the AFBCMR,
they provide no recommendation 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.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluation and the HQ USAF/JAA and
SAF/GCM legal opinions were forwarded to applicant and Counsel on
14 Mar 12 for review and comment within 30 days. As of this
date, no reply has been received by this office (Exhibit E).
_________________________________________________________________
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. The
applicant has not demonstrated that extraordinary circumstances
exist that constitute a basis for this Board to grant relief in
cases of competing SBP beneficiaries. We took notice of the
applicants complete submission in judging the merits of the case
and do not take issue with the applicants assertion that the
Court, in the divorce decree, ordered the former service member
to continue coverage for her under SBP. However, in violation of
the Courts order, he failed to convert the coverage to former
spouse coverage within one year of their divorce as required by
law. 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 members 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 members 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 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-2011-02149 in Executive Session on 24 Apr 12, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Jun 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 14 Jul 11.
Exhibit C. Letter, AFBCMR, dated 26 Jan 12, w/atchs.
Exhibit D. Letter, Current Spouse, dated 30 Jan 12, w/atchs.
Exhibit E. Letter, AFBCMR, dated 14 Mar 12.
Panel Chair
AF | BCMR | CY2011 | BC-2011-03077
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Neither the applicant nor the member made a deemed election for the SBP within a year of the divorce, as required. ___________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation per AFBCMR guidance because it involves two potential SBP beneficiaries. 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...
AF | BCMR | CY2011 | BC-2011-04556
On 23 May 2012, the applicant and the former member were provided advisories (Exhibit D) prepared by SAF/GCM on similar cases considered by the Board. ___________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The former member wrote on behalf of his former spouse stating he elected the applicant as the SBP beneficiary upon his retirement and was unaware another declaration was to be made within a year of the divorce. While we note the...
AF | BCMR | CY2011 | BC-2010-03013
There is no evidence the service member or the applicant submitted a request for former spouse coverage within one year following their divorce. The complete SAF/MRB Legal Advisor evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant requests the Board honor the divorce decree that deemed her the beneficiary under the SBP. While we do not take issue with the applicant’s...
AF | BCMR | CY2011 | BC-2011-04870
There was a miscommunication; she thought she had one year from the date her former spouse signed the DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage to comply, not one year from the date of the divorce. The complete DPSIAR evaluation is at Exhibit B. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries.
AF | BCMR | CY2011 | BC-2011-02108
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 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. Further complicating this case is the fact that after he remarried, the deceased former member failed to elect...
AF | BCMR | CY2010 | BC-2010-04680
Her divorce decree lists her as the SBP beneficiary to receive the former members SBP benefits. 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. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure of she and her...
AF | BCMR | CY2010 | BC-2009-02738
Since the period of time allowed by law to make a deemed election for former spouse coverage has already passed, the only way the Board can grant the applicant’s request to change the record is if he were to provide a notarized statement from his current spouse relinquishing her entitlement to the SBP. Exhibit C. Letter, SAF/MRB Legal Advisor, dated 29 Jan 10. Exhibit D. Letter, AFBCMR, dated 29 Jan 10, w/atchs.
AF | BCMR | CY2012 | BC-2012-00454
To comply with federal law, AFAFC established spouse coverage based on full retired pay under the SBP, updated the applicant’s date of birth as the eligible spouse beneficiary and began deducting premiums from the service member’s retired pay. The DPSIAR complete evaluation is at Exhibit B. The Board has been advised that it can consider cases involving potential claims by more than one spouse or former spouse if there is evidence that the member or former spouse timely notified...