RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER: BC-2011-02150
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses record be changed to show he elected former
spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was awarded the SBP in her divorce decree.
In support of the applicants appeal, she provides a personal
statement, a copy of a death certificate and divorce decree.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and the decedent were married on 2 July 1965 and he
elected spouse only SBP coverage based on a reduced level of
retired pay prior to his 1 May 1990 retirement. They divorced on
27 May 1992.
The decedent married his second spouse on 5 December 1992. On
18 February 1997, the decedent requested that the Defense Finance
and Accounting Service Cleveland Center (DFAS-CL) remove the
applicant and add his second spouse to the plan.
The decedent died on 17 August 2009.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR makes no recommendation. DPSIAR states the
applicants divorce decree ordered the former service member to
maintain the SBP connected to his military retired pay for the
benefit of the applicant. However, neither party submitted a
valid election within one year of their divorce. The former
service members widow is currently receiving a monthly SBP
annuity of $332.
The DPSIAR complete evaluation is at Exhibit B.
The applicant was provided an advisory (Exhibit C) prepared by
SAF/GCM on similar cases considered by the Board. 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 the
Government within one year after the divorce was final, or if
there are extraordinary circumstances that would justify
correction of the record. For example, extraordinary
circumstances might exist if the current spouse signs a notarized
affidavit saying she waives her potential claim to the survivor
benefits in favor of complying with the members obligations
under the divorce agreement.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 18 May 2012, copies of the Air Force evaluations were
forwarded to the applicant for review and response within 30 days
(Exhibit E). As of this date, no response has been received by
this office.
_________________________________________________________________
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 are required 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. We do not take issue with the applicants assertion that
the Court, in the divorce decree, ordered the late former service
member to continue coverage for her under SBP. 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. The applicant indicated she was never informed that she had
to follow-up on this matter after their divorce. It was not
until her former husbands death that she was informed by
personnel at Offutt Air Force Base that the payment allocation
change had been made from her to her former spouses widow. In
the absence of evidence that there was a deemed election by the
former service member within one year after the divorce, the
Board assumes the former service members widow 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 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-2011-02150 in Executive Session on 15 August 2012,
under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2011-02150 was considered:
Exhibit A. DD Form 149, dated 4 June 2011, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 20 July 2011.
Exhibit C. Letter, SAF/GCM, dated 18 October 2006.
Exhibit D. Letter, SAF/MRBR, dated 18 May 2012.
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