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AF | BCMR | CY2011 | BC-2011-02149
Original file (BC-2011-02149.txt) Auto-classification: Denied
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 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: 

 

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 
applicant’s 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 spouse’s 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 husband’s 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 
applicant’s complete submission in judging the merits of the case 
and do not take issue with the applicant’s 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 Court’s 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 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 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 



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