RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
DOCKET NUMBER: BC-2011-05066
COUNSEL:
HEARING DESIRED: NO
IN THE MATTER OF:
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouse’s 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 applicant’s appeal, she provides a personal
statement, DD Form 214, Armed Forces of the United States Report
of Transfer or Discharge, copy of a divorce decree, and a letter
from the Defense Finance and Accounting Service.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Prior to the service member’s 1 August 1969 retirement he elected
child only coverage under the Retired Serviceman’s Family
Protection Plan (RSFPP). The member declined SBP during the
plan’s initial open enrollment (21 September 1972 to 20 March
1974).
Records contained in the Defense Enrollment Eligibility Reporting
System (DEERS) reflect the applicant and the member married on
15 December 1979, and he elected spouse only SBP coverage based
on full retired pay during the open enrollment authorized by
Public Law (PL) 97-35 (1Oct 81 to 30 Sep 82).
The parties divorced 22 November 2000.
The applicant remarried on 16 August 2006.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR makes no recommendation. DPSIAR states the divorce
decree ordered the former service member to maintain the
applicant as beneficiary of the SBP. There is no evidence the
applicant submitted a request for an SBP election to be deemed on
her behalf within the first year following their divorce.
Monthly premiums continued to be deducted from the member’s
retired pay until December 2002 when his coverage was suspended.
DEERS records reflect the member remarried on 16 August 2006, and
by operation of law, his current spouse became his eligible SBP
spouse beneficiary on the first anniversary of their marriage.
The DPSIAR complete evaluation is at Exhibit B.
The applicant and service member were 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 member’s obligations
under the divorce agreement.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the evaluation and states she was never
informed that she had to take action regarding the filing of
additional documentation in order to receive benefits. She was
not represented in her divorce and did not know about the filing
requirements. The Martial Settlement Agreement should be
enforced.
The applicant’s response is at Exhibit E.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2
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 applicant’s
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 member’s 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. Therefore, 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, we find no basis to grant the applicant’s request.
_________________________________________________________________
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-2011-05066 in Executive Session on 21 September 2012
and 9 October 2012, under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2011-05066 was considered:
Exhibit A. DD Form 149, dated 16 December 2011, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 7 February 2012.
Exhibit C. Letter, SAF/GMC dated 18 October 2006.
Exhibit D. Letters, SAF/MRBR, dated 1 March 2012 and AFBCMR,
dated 22 June 2012.
Exhibit E. Letter, Applicant, dated 27 March 2012.
Exhibit F. Letter, AFBCMR, dated 20 September 2012.
3
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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. ___________________________________________________________ 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. While we note the...
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Neither the applicant nor the member made a deemed election for the SBP within a year of the divorce, as required. ___________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation per AFBCMR guidance because it involves two potential SBP beneficiaries. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure to effect the former spouse coverage, based on the...
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To comply with federal law, AFAFC established spouse coverage based on full retired pay under the SBP, updated the applicant’s date of birth as the eligible spouse beneficiary and began deducting premiums from the service member’s retired pay. The DPSIAR complete evaluation is at Exhibit B. 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...
AF | BCMR | CY2011 | BC-2011-04870
There was a miscommunication; she thought she had one year from the date her former spouse signed the DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage to comply, not one year from the date of the divorce. The complete DPSIAR evaluation is at Exhibit B. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries.
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She indicates there is no evidence the deceased former member elected former spouse coverage for any of his former spouses. In Dec 92, DFAS received an SBP Open Enrollment Election form from the member requesting to change the applicants coverage from spouse to former spouse. A complete copy of the AFRBA Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant contends...
AF | BCMR | CY2012 | BC-2012-03646
In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. There is no record the applicant submitted a valid election to establish former spouse SBP coverage within the first year following their divorce. She has not provided evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law.
AF | BCMR | CY2012 | BC-2012-03982
The former service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. She has not provided any evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law.
AF | BCMR | CY2012 | BC-2012-01351
DPSIDAR states that there is no evidence of Air Force error in this case; however, in the absence of a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming APPLICANT as the former spouse beneficiary, effective 11 January 2005. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the...
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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS DOCKET NUMBER: BC-2012-01101 COUNSEL: NONE HEARING DESIRED: NO IN THE MATTER OF: _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to establish former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates that since the request...
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_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial, indicating there is no evidence of an error or injustice. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She was not provided or informed on the law and requirements of SBP. Had she been informed or provided the information on the requirements of the law pertaining to SBP she would have been able to make a...