RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-03077
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election for
former spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
His former spouse should be reinstated as his SBP beneficiary in
order to comply with their divorce decree. He did not know he
needed to make an election within one year.
In support of his request, the applicant provides a copy of his
divorce decree and modification order.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and his former spouse were married on 24 Apr 70, he
elected spouse only SBP coverage based on a reduced level of
retired pay prior to his 1 Jan 94 retirement. The parties
divorced on 19 Sep 01, and the Marital Settlement Agreement was
silent on the SBP. There is no evidence the applicant submitted
a valid election to voluntarily change spouse to former spouse
SBP coverage within the first year following their divorce as the
law requires. The applicant married his current wife on 15 Jun
02, and on 6 May 03, he requested that the Defense Finance and
Accounting Service Cleveland Center (DFAS-CL) add her as his
spouse beneficiary. On 15 Jun 03, DFAS-CL updated the
applicants records to reflect his current spouses name and date
of birth as the eligible spouse beneficiary. On 25 May 11, a
modification of the applicants Dissolution of Marriage order was
filed, instructing him to make his former spouse the sole and
irrevocable beneficiary of his SBP annuity.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR indicates that since the request involves two
potential SBP beneficiaries, no recommendation is provided.
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The SAF/MRB Legal Advisor recommends denial. The Legal Advisor
states the applicant provides no evidence of error on behalf of
the Air Force or DFAS. The only inference of injustice appears
to be that the applicant was unaware of the SBP election
requirements. The Legal Advisor concluded there were no
extraordinary facts or equities which merit granting the
requested relief, unless the competing spouse relinquishes her
rights. While a court is well suited to resolve disputes between
competing parties, the AFBCMR is not. Though this action was
directed by the court of jurisdiction as part of the applicants
divorce agreement, the current spouse was not a party to the
case. Nothing in the case file supports taking the entitlement
from the current spouse and granting it to the former spouse,
without the benefit of a judicial hearing.
The SAF/MRB Legal Advisors evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION
On 3 Jan 12, SAF/MRBC forwarded to the applicant copies of the
Air Force evaluation, SAF/MRB legal opinion, and memorandums from
HQ USAF/JAA and SAF/GCM for review and comment within 30 days.
(Exhibit D)
In response to the SAF/MRBC memorandum, the applicant provided a
notarized statement from his current spouse relinquishing her
rights to the SBP.
The applicants complete submission 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 not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Sufficient relevant evidence has been presented to
demonstrate the existence of an injustice. Although we find no
evidence of an error on the part of the Air Force, after careful
consideration of the applicants submission, we believe that his
former spouse should be designated as the eligible beneficiary
for his Survivor Benefit Plan (SBP) annuity. In this respect, we
note the applicants current spouse has provided a notarized
statement relinquishing her potential entitlement to the SBP. We
are satisfied his current spouse is fully aware she is
relinquishing her entitlement to the annuity. Therefore, we
recommend that the applicants records be corrected as indicated
below.
_______________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 20 September
2001, he elected to change his Survivor Benefit Plan (SBP) spouse
only coverage to former spouse coverage, based on a reduced level
of retired pay, naming his former spouse as the SBP beneficiary.
_______________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2011-03077 in Executive Session on 16 Feb 12, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 Aug 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 28 Sep 11.
Exhibit C. Letter, SAF/MRB Legal Advisor, dated 19 Dec 11.
Exhibit D. Letter, SAF/MRBC, dated 3 Jan 12, w/atchs.
Exhibit E. Letter, Applicant, undated, w/atch.
Panel Chair
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