RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-05699
COUNSEL:
HEARING DESIRED: NO
________________________________________________________________
_
APPLICANT REQUESTS THAT:
She be named as former spouse under the Survivor Benefit Plan
(SBP).
________________________________________________________________
_
APPLICANT CONTENDS THAT:
Pursuant to the Judgment of Absolute Divorce decree, dated 11
Feb 11, that reflects she was designated as the former spouse
beneficiary for her ex-husbands SBP annuity, she should not be
denied eligibility for this benefit. Counsel notes that the
judgment was signed on 11 Feb 11; however, it was not entered
until 10 Mar 11. Under Maryland law, a divorce decree is not
valid until it has been entered by the Clerk of the Court. In
this case, the applicants Judgment of Absolute Divorce was not
a valid document until it was entered by the Clerk of the Court
on 10 Mar 11.
In support of her request, the applicant provides a copy of a
letter from counsel, a copy of a letter from DFAS, a copy of her
Judgment of Absolute Divorce decree, a copy of a certified
letter from counsel, a copy of DD Form 2656, Survivor Benefit
Plan (SBP)/Reserve Component (RC) SBP Requests for Deemed
Election, and mail receipts.
Her complete submission, with attachments, is at Exhibit A.
________________________________________________________________
_
STATEMENT OF FACTS:
On 5 Nov 13, the SAF/MRB Legal Advisor sent the applicants
counsel an email requesting an affidavit be provided to confirm
that the former member has not remarried. As of this date, this
office has received no response.
The relevant facts pertaining to this application are contained
in the letter prepared by the appropriate office of the Air
Force, which is at Exhibit C.
________________________________________________________________
_
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. The Defense Enrollment
Eligibility Reporting System (DEERS) reflects the applicant and
the member married on 23 Nov 73, and divorced on 11 Feb 11.
Prior to the members retirement on 1 Jul 97, he elected spouse
and child SBP coverage based on full retired pay. Although
unenforceable, the divorce decree states that the applicant is
entitled to full survivor annuity benefits related to the
members pension with the Air Force and shall pay for the cost
of said benefit for her share of the monthly annuity. SBP
premiums continue to be deducted from the members retired pay
and DFAS-CL records continue to erroneously reflect the
applicants name and date of birth (9 Mar 44) as the eligible
spouse beneficiary. They cannot confirm if either party has
remarried. However, it would be appropriate to enforce the
parties court-ordered agreement to continue SBP coverage, an
asset the court apparently intended to award, on the applicants
behalf.
In the interest of justice and absent a competing claimant,
DPFFF recommends correcting the record to show the applicant
submitted a valid request that former spouse SBP coverage based
on full retired pay was deemed effective 12 Feb 11.
The complete DPFFF evaluation is at Exhibit C.
________________________________________________________________
_
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel submits the applicants acceptance of the DPSIAR
recommendation. In addition, the applicant accepts the
responsibility for the cost of the SBP per the divorce decree,
to include retroactive SBP costs.
The applicants complete submission, 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 error or injustice. 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.
Regrettably, the applicant also failed to execute a deemed
election for coverage within the one year timeframe. We note
the Air Force office of primary responsibility recommends
approval. However, 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 applicants request
is if an affidavit is provided to confirm that the former member
has not remarried. Consequently, in the absence of evidence to
the contrary, we find no basis to recommend granting relief at
this time. However, the Board is willing to reconsider the
applicants request if she provides the required affidavit as
evidence proving the former member has not remarried.
________________________________________________________________
_
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-2012-05699 in Executive Session on 30 Sep 13 and 14
Jan 14, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 7 Dec 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPFFF, dated 11 Mar 13.
Exhibit D. Letter, SAF/MRBR, dated 22 mar 13.
Exhibit E. Letter, Counsel, dated 4 Apr 13.
Panel Chair
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