AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

DOCKET NUMBER:  BC-2012-01307 
 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

 
 
IN THE MATTER OF: 
   
  (DECEASED) 
  (EX SPOUSE)  
   
 
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
Former Spouse coverage be established for her under the Survivor 
Benefit Plan (SBP).   
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
Her ex-husband, the deceased, always intended for her to receive 
his  Survivor  Benefits.    When  they  divorced  in  2004,  after  over 
42 years of marriage, he made sure her SBP rights were addressed 
in  the  divorce  decree,  and  told  her  he  would  notify  Defense 
Finance  and  Accounting  Services  (DFAS).    He  faxed  a  3  May  05 
letter to DFAS for that purpose.  Until she received a copy of 
this letter, she was not aware the divorce decree alone was not 
sufficient  to  establish  her  rights,  and  even  then  she  did  not 
know her ex-husband’s notification letter was two months late.   
 
In support of her request, the applicant provides copies of her 
marriage  license,  divorce  decree,  her  ex-husband’s  death 
certificate, and notification letter to DFAS. 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The  deceased  and  the  former  spouse  (applicant)  were  married  on 
8 Aug 62, and he elected spouse and child SBP coverage based on 
full retired pay prior to his 1 Jan 80 retirement.   
 
On  3  Mar  04,  the  parties  divorced  and  the  deceased  and  his 
second spouse married on 19 Nov 05. 
 
On 19 Nov 11, the applicant’s ex-spouse (the deceased) died.   
 
On  6  Mar  12,  DFAS  refunded  the  applicant  $2,942.19  for  SBP 
premiums removed from his retired pay for the period 20 Nov 05 
through 29 Feb 11.   

 

 

 
The remaining relevant facts pertaining to this application are 
contained  in  the  letter  prepared  by  the  Air  Force  office  of 
primary responsibility (OPR), which is attached at Exhibit C. 
 
________________________________________________________________ 
AIR FORCE EVALUATION: 
 
AFPC/DPSIAR does not make a recommendation, as is the policy in 
cases with two potential beneficiaries.  A person’s eligibility 
to  receive  a  spouse  SBP  annuity  terminates  upon  divorce.  
However,  the  law  provides  two  mechanisms  for  changing  spouse 
coverage  to  former  spouse  coverage.    One  of  the  following 
actions  must  be  exercised  within  the  first  year  following  the 
divorce:    (1)  the  retiree  may  file  an  election  change,  or 
(2) the former spouse may request the retiree be deemed to have 
made  such  a  change  on  his  or  her  behalf.    In  the  latter  case, 
the  former  spouse  must  provide  legal  documentation  showing  the 
member agreed, or that the court ordered the member to establish 
former  spouse  coverage.    If  neither  the  member  nor  the  spouse 
requests  the  election  change  during  the  one-year  eligibility 
period,  former  spouse  coverage  may  not  be  established 
thereafter.  Even though a member fails to notify DFAS—Cleveland 
(DFAS-CL)  of  the  divorce  and  continues  to  pay  SBP  premiums 
afterword,  the  former  spouse  is  not  eligible  for  annuity 
payments upon the member’s death. 
 
The  parties  divorced  on  3  Mar  04,  and  their  divorce  decree 
ordered the deceased to make the necessary election in a timely 
manner  to  effectuate  the  applicant  as  this  SBP  beneficiary.  
There is no evidence either party submitted a valid election to 
change  spouse  coverage  to  former  spouse  coverage  within  the 
first  year  following  their  divorce.    The  DFAS-CL  SBP  record 
continued to reflect the applicant’s name and date of birth (10 
Aug  44)  as  the  eligible  spouse  beneficiary.    SBP  premiums  were 
deducted  from  the  deceased’s  retired  pay  until  Mar  11,  when  he 
was “paid up” as authorized by Public Law 105-261 (17 Oct 98).  
The  Defense  Enrollment  Eligibility  Reporting  System  (DEERS) 
reflects  the  deceased  and  his  second  spouse  married  on  19  Nov 
05, and she became the eligible spouse beneficiary on the first 
anniversary of their marriage, even though the deceased did not 
notify  the  finance  center  of  his  remarriage.    The  applicant 
remarried  on  7 Oct  06;  however,  she  was  over  the  age  of  55  at 
that time, thus, her marriage does not affect her eligibility to 
receive SBP payments.  The deceased died on 19 Nov 11, but there 
is  no  indication  the  second  spouse  has  applied  for  payment  of 
the SBP annuity.   
 
The complete AFPC/DPSIAR evaluation is at Exhibit C. 
 
________________________________________________________________ 
 
 
 
 

 
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
A  copy  of  the  Air  Force  evaluation  was  forwarded  to  the 
applicant  on  30  May  12  for  review  and  comment  within  30  days.  
As  of  this  date,  no  response  has  been  received  by  this  office 
(Exhibit D). 
A  copy  of  the  SAF/GCM  legal  opinion  regarding  SBP,  dated 
18 Oct 06,  was  forwarded  to  the  applicant  on  31  Oct  12  for 
review and comment within 30 days.  As of this date, no response 
has been received by this office (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.  We took notice 
of  the  applicant’s  complete  submission  in  judging  the  merits  of 
the  case;  however,  we  believe  the  applicant  has  failed  to 
establish  that  she  suffered  either  an  error  or  injustice.  
Neither the applicant nor the deceased submitted a valid election 
within the one-year period after their divorce as required by law 
to establish former spouse coverage.  Although the AFBMCR has the 
authority, it should not rule on a dispute between two claimants 
to  a  benefit  that  only  one  of  them  can  receive.        However, 
should  the  applicant  provide  a  notarized  statement  from  the 
deceased  former  member’s  widow  relinquishing  her  entitlement  to 
the  SBP  proceeds,  the  Board  may  be  willing  to  reconsider  the 
applicant’s  appeal  on  the  basis  of  new  evidence.    Therefore,  in 
view of the foregoing, we find no basis to recommend granting the 
relief sought in this application. 

 ________________________________________________________________ 
 
THE BOARD DETERMINES THAT: 
 
The  applicant  be  notified  the  evidence  presented  did  not 
demonstrate  the  existence  of  material  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. 
 
________________________________________________________________ 
 
 
 
 

 
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The  following  members  of  the  Board  considered  AFBCMR  Docket 
Number  BC-2012-01307  in  Executive  Session  on  27  Nov  12,  under 
the provisions of AFI 36-2603: 
 
 
 
 
 
All  members  voted  to  correct  the  records  as  recommended.    The 
following documentary evidence was considered: 
 
 
 
 

Exhibit A.  DD Form 149, dated 2 Apr 12, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPSIAR, dated 17 May 12. 
Exhibit D.  Letter, SAF/MRBR, dated 30 May 12. 
Exhibit E.  Letter, AFBCMR, dated 31 Oct 12, w/atch.  

  Panel Chair 
  Member 
  Member 

 
 
 
 
  
                                   Panel Chair 
 

 
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