RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01517
(DECEASED) COUNSEL: NONE
(APPLICANT) HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses records be corrected to reflect he made a
timely election for former spouse coverage under the Survivor
Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She is not married and is entitled to her former spouses
benefits, but believes she will not be able to receive them due
to an error in the spelling of her first name in his records.
In support of her request, the applicant provides a copy of her
drivers license, her former spouses death certificate and
retirement order, their marriage license, and an excerpt of the
Divorce Decree.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application are contained
in the letter prepared by the appropriate office of the Air
Force, which is attached at Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR notes the applicant was married and elected spouse
only SBP coverage prior to his 1 Mar 73 retirement. The Air
Force Accounting and Finance Center (AFAFC) records reflect the
service member and the applicant were divorced on 24 Feb 92. He
remarried on 9 May 92 and SBP coverage was reinstated on his
wifes behalf on the first anniversary of their marriage. The
service members SBP premiums were paid up on 1 Oct 08. He died
on 9 Apr 09 and his widow is receiving the monthly SBP annuity.
Based on the guidance from the AFBCMR, AFPC/DPSIAR provides no
recommendation as this request involves two potential
beneficiaries.
The complete AFPC/DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on
7 Aug 12 for review and comment within 30 days (Exhibit C). As
of this date, no response has been received by this office.
_________________________________________________________________
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. We took
notice of the applicants complete submission in judging the
merits of the case. The applicant has not provided any evidence
to reflect she was awarded former spouse coverage by the court.
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. Nor, has she provided
evidence to show she requested a deemed election for former
spouse coverage within the one year timeframe. Consequently, the
former service members current spouse gained entitlement to the
benefit as an operation of law and is currently receiving the
annuity. The applicant has not provided any evidence that
extraordinary circumstances existed that would override the
failure of her and the former spouse to effect the former spouse
coverage and, based on the legal guidance the Board has been
given, we can only grant the relief sought if the former service
members spouse provides notarized consent relinquishing the
benefit. Therefore, in the absence of evidence to the contrary,
we find no basis to recommend granting the requested relief.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of a 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.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-01517 in Executive Session on 12 Feb 13, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 19 Apr 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 26 Jul 12.
Exhibit C. Letter, SAF/MRBR, dated 7 Aug 12.
Panel Chair
AF | BCMR | CY2012 | BC-2012-01307
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. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...
AF | BCMR | CY2011 | BC-2011-04466
_______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. While we do not take issue with the applicants assertion that her divorce decree ordered her deceased former husband to continue coverage for her under the SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. ...
AF | BCMR | CY2011 | BC-2011-02121
The SAF/MRB Legal Advisors complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the current spouse of her deceased former spouse never spent a day with him during his military career but is reaping the benefits that she earned. She is being denied SBP because of a mistake DFAS and the Air Force has made by not upholding Air Force regulation (if you are married to a military...
AF | BCMR | CY2011 | BC-2011-04372
There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. The evidence of record reflects that as a part of the divorce settlement the court ordered the applicant to elect former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force...
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 | CY2013 | BC 2012 02043
_________________________________________________________________ STATEMENT OF FACTS: While married, the member elected spouse and child coverage based on a reduced level of retired pay under the SBP prior to his 1 Jun 73 retirement. There is no record of marriage at the time of his death. While counsel argues the former member never married; the evidence of record, specifically, the death certificate states otherwise.
AF | BCMR | CY2007 | BC 2007 03737
Even though the SBP was not addressed in the divorce decree, the member could have elected former spouse coverage voluntarily within the first year following the divorce, but failed to do so. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error...
AF | BCMR | CY2011 | BC-2011-03077
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. 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...
AF | BCMR | CY2010 | BC-2010-02569
The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. DPSIAR states the law in effect at the time of the applicants divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse eligibility; therefore, the fact the divorce decree mentioned the SBP does not provide standing to establish SBP coverage on the applicants behalf. We took notice of the applicant's...
AF | BCMR | CY2012 | BC-2012-01544
Based on the available evidence of record and the applicants submission, it appears the decedent and the applicant were married in Feb 09. Subsequent to the divorce of his first spouse, a deemed election for former spouse coverage was submitted to DFAS and accepted in accordance with the divorce decree and the governing law. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 12.