RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01544
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to benefits under the Survivor Benefit Plan
(SBP).
____________________________________________________________
_____
APPLICANT CONTENDS THAT:
The former spouse listed on the divorce decree, dated 13 Feb
07, should be removed from the decedents record as the
eligible beneficiary.
In support of her request, the applicant provides copies of
a direct deposit form; the deceased members divorce decree
(from former spouse); marriage certificate; personal
statement, and the deceased members death certificate.
The applicant's complete submission, with attachments, is at
Exhibit A.
____________________________________________________________
_____
STATEMENT OF FACTS:
The applicant and the service member were married on 27 Feb
09.
Other relevant facts pertaining to this application,
extracted from the applicants military records, are
contained in the letter prepared by the appropriate office
of the Air Force. Accordingly, there is no need to recite
these facts in this Record of Proceedings.
_________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR did not provide a recommendation, based on
previous guidance by the AFBCMR when the application
involves two potential SBP beneficiaries.
The Defense Enrollment Eligibility Reporting System (DEERS)
reflects the decedent and his former spouse were married on
20 Jun 70. The decedent elected SBP spouse and child
coverage based on full retired pay prior to his 1 Nov 87
retirement. The last dependent child lost eligibility
effective Jun 95. The decedent was divorced on 15 May 07 [nunc pro tunc (now for then) to 13 Feb 07]. Their 26 Sep 06
petition for dissolution of marriage stated the "husband and
wife may elect Survivor's Benefit Plan coverage within one
year of the order entering final judgment of dissolution."
On 31 Jan 08, the former spouses attorney submitted a valid
request to the Defense Finance and Accounting Service-
Cleveland Center (DFAS-CL) to deem an SBP election on her
behalf.
The decedent died, on 27 Sep 11, and the former spouse is
receiving payments of the SBP annuity (approximately $930
per month).
The DPSIAR evaluation is attached at Exhibit B.
____________________________________________________________
_____
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In her response, the applicant notes that she was married to
the decedent for over 23 years, was with him during his
illness and death. She should be eligible for some benefits
from the military. Since his death it has been very
difficult especially with the family finances.
In support of her appeal, the applicant provides several
letters to support her claim.
The applicants complete response, with attachments, is at
Exhibit D.
_________________________________________________________________
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. The
applicants response to the Air Force evaluation is noted;
however, Title 10, United States Code (U.S.C.), Section
1448, provides two mechanisms for changing spouse coverage
to former spouse coverage. Both must be exercised within
the first year following divorce: the retiree may file an
election change, or the former spouse may request the
retiree be deemed to have made such a change on his or her
behalf. The request must be written, signed by the person
making the election, and received by the Secretary concerned
within one year after the date of the decree of divorce,
dissolution, or annulment. 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. While we empathize with the applicant, we
did not find any evidence to establish that she has been the
victim of an error or injustice. In view of the above, 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.
____________________________________________________________
____
The following members of the Board considered AFBCMR Docket
Number BC-2012-01544 in Executive Session on 19 December
2012, under the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 7 Mar 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 21 May 12.
Exhibit C. Letter, SAF/MRBR, dated 4 Jun 12.
Exhibit D. Letter, dated 10 Jun 12, w/atchs.
Panel Chair
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