RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03646
COUNSEL: NONE
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:
Their separation agreement, which was incorporated in the
divorce decree, states that she will be the beneficiary of the
SBP until her death.
The applicants 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/DPFFF provides no recommendation, based on the guidance
from the AFBCMR and since there are two potential SBP
beneficiaries. A spouse's eligibility to receive an SBP annuity
terminates upon divorce. However, there are two mechanisms for
changing spouse coverage to former spouse coverage. 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. One of these actions must be exercised
within the first year following the divorce. 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. If neither party requests
the election change during the one-year eligibility period,
former spouse coverage may not be established thereafter.
The microfiche records from the Air Force Accounting and Finance
Center (AFAFC) reflects the former service member did not elect
SBP coverage during the Plans initial enrollment period. The
former service member elected spouse only SBP coverage based on
full retired pay during an authorized open enrollment period
(1 Oct 81 to 30 Sep 82). The parties' divorced on 3 Dec 87 and
the final decree does not specifically refer to the SBP. There
is no record the applicant submitted a valid election to
establish former spouse SBP coverage within the first year
following their divorce. The former service member died on
14 Jul 12.
The Defense Enrollment Eligibility Reporting System (DEERS)
reflects the service member remarried on 18 Nov 92. There is no
evidence he notified DFAS-CL of the change in his marital
status, or request SBP coverage be established on his new
spouses behalf. However, his current spouse became the
eligible spouse beneficiary on the first anniversary of their
marriage by operation of law.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 1 Oct 12, for review and comment within 30 days.
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 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. 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 cannot, except in the most
extraordinary circumstances, award a benefit to an applicant
when doing so involves taking or depriving another of said
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 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-2012-03646 in Executive Session on 17 Jun 13, under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Aug 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 12 Sep 12.
Exhibit C. Letter, SAF/MRBR, dated 1 Oct 12.
Panel Chair
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