RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-04556
COUNSEL: NONE
HEARING DESIRED: NO
_____________________________________________________________
APPLICANT REQUESTS THAT:
She be awarded her former spouses Survivor Benefit Plan
(SBP) annuity.
_____________________________________________________________
APPLICANT CONTENDS THAT:
She was unaware that she had to make a deemed election within
a year of the divorce.
In support of her request, the applicant provides a copy of
the divorce decree.
The applicant's complete submission, with attachments, is at
Exhibit A.
___________________________________________________________
STATEMENT OF FACTS:
According to the data extracted from the Air Force advisory,
the applicant and the former member were married on
2 December 1967 and divorced on 4 March 1998. The service
member retired on 1 July 1988.
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. The Board has been
advised that it should not consider cases involving disputed
claims between competing beneficiaries, unless a court of
competent jurisdiction has ruled in the case or pushes the
AFBCMR to make such determination.
The remaining relevant facts pertaining to this application
are contained in the letter prepared by the appropriate
office of the Air Force which is at Exhibit B.
___________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR does not provide a recommendation because the
application involves two potential SBP beneficiaries.
Prior to the service members retirement on 1 July 1988, he
elected spouse only SBP coverage based on full retirement
pay. The parties separation and property settlement
agreement, which was incorporated in the divorce decree
ordered that the applicant remain as the SBP beneficiary.
There is no evidence either party submitted a request to
change spouse coverage to former spouse coverage within the
first year following the divorce. However, the member did
not request the applicant be removed from his SBP spouse
coverage.
On 17 December 2001, the applicant remarried. By law, the
new spouse became the eligible spouse beneficiary on the
first anniversary of their marriage.
The complete DPSIAR evaluation is at Exhibit B.
___________________________________________________________
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.
He is remarried, however, that marriage will end in divorce
also. After the divorce is finalized, he will have her
removed from the Defense Enrollment Eligibility Reporting
System (DEERS).
He believes the applicant is the rightful and only
beneficiary of his SBP and he never intended to transfer it
to his current wife.
The applicants complete response, with attachment, 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. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice. The
applicant has not demonstrated that extraordinary
circumstances exist as 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. While we note the divorce decree awarded
the applicant continued coverage under SBP, neither she nor
the former member made a deemed election within one year as
required by law. Since it appears the former service
members second spouse gained entitlement to the benefit by
operation of law, and there has been no showing of
extraordinary circumstances, we are precluded from granting
the applicant the SBP benefit. While we note the former
service members certification that he intended the applicant
remain the SBP beneficiary, unless proof of a timely election
of former spouse coverage is provided, the second spouse
relinquishes her entitlement or the former member executes
the appropriate steps required to remove his second spouse as
beneficiary due to their dissolution of marriage, we find no
basis to grant the applicants request.
_____________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice;
that the application was denied without a personal
appearance; and that 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-2011-04556 in Executive Session on 6 September
2012, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining to BCMR Docket
Number BC-2011-04556 was considered:
Exhibit A. DD Form 149, dated 14 Nov Aug 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 28 Dec 11.
Exhibit C. Letter, SAF/MRBR, dated 6 Jan 12.
Exhibit D. Letter, AFBCMR, dated 23 May 12, w/atchs.
Exhibit E. Letter, Former Member, dated 4 Jun 12, w/atch.
Acting Panel Chair
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