RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		 DOCKET NUMBER: BC-2012-04722
	XXXXXXX     (DECEASED)		 COUNSEL: NONE
	XXXXXXX     (APPLICANT)	 HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased former spouse’s (decedent) records be corrected to 
reflect he made a timely election for former spouse coverage 
under the Survivor Benefit Plan (SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

She never received timely correspondence from the military 
about deemed election.  The first correspondence she received 
about deemed election was in 1993 via her attorney.

In support of her request the applicant provides copies of her 
marriage certificate, divorce decree and various other 
documents associated with her request.

Her 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 at Exhibit B.

_______________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFFF does not provide a recommendation because it 
involves two potential SBP beneficiaries.  They do note that 
the applicant provided a certified copy of her and the 
decedent's 16 Jun 1972 marriage certificate.  The parties 
divorced on 22 Oct 1992, and although the divorce decree 
awarded the petitioner $520 per month in spousal support, it 
was silent on the SBP.  The Defense Enrollment Eligibility 
Reporting System (DEERS) reflects the member and his widow 
married on 12 Sep 1996.  The member was a Reservist and became 
entitled to receive retired pay upon attaining age 60  (4 Jul 
1999).  He did not immediately apply for retired pay, but he 
elected spouse only coverage based on full retired pay under 
the SBP on his widow’s behalf effective 3 May 2001. The Defense 
Finance and Accounting Service-Cleveland Center (DFAS-CL) 
reflects his widow has not yet applied for payment of her SBP 
annuity (approximately $522 per month).

The complete DPFFF evaluation is at Exhibit B.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He never paid child support or marital support.  The county 
district attorney finally located him on a reservation in South 
Dakota.  However, since he resided on the reservation they had 
no jurisdiction in the case.  When he left the reservation he 
changed his name and she did not hear from him until 2012 when 
a family member advised her that he was dying from a brain 
tumor.

There should be protection for the ex-spouse.  She should have 
been made aware of this "deemed election," and now because she 
was not made aware, she is losing the military coverage that 
should be hers.  This is a grave injustice.

In further support of her request the applicant provides a 
personal statement and a copy of a letter from the Department 
of Social Services, Office of Child Support Enforcement.

Her complete response, with attachments, is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 27 Jun 2013, a copy of the SAF/GCM memorandum, dated 18 Oct 
2006 was forwarded to the applicant for review and comment 
within 30 days.  As of this date, this office has received no 
response (Exhibit F).

_______________________________________________________________

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 
applicant's complete submission was thoroughly reviewed and her 
contentions were duly noted.  However, we do not find the 
applicant's assertions and the documentation presented in 
support of her request sufficiently persuasive to disturb the 
record.  In this respect, we took note of the divorce decree 
that ordered the applicant to provide SBP coverage for his 
former spouse.  However, we also note that federal law makes 
the election unavailable when the deemed election is not timely 
effected, and no evidence has been presented which shows a 
deemed election was made within the one-year time period 
mandated by the law.  We are aware that in extraordinary 
circumstances, it is within the authority of the Board to 
correct a record if it finds it necessary to prevent an error 
or injustice.  However, in this case, there are no 
extraordinary circumstances here that support not enforcing the 
deemed election requirement given the fact that a correction of 
the record in the manner requested would deprive the 
applicant's current spouse of the benefits to which she is 
legally entitled.  If the decedent’s widow provides a notarized 
statement relinquishing her potential entitlement to the SBP 
annuity, we would be willing to reconsider the applicant’s 
appeal in consideration of the new evidence.  Otherwise, the 
applicant’s only recourse is to return to a court of law to 
have the issue decided.  In view of the foregoing, and in the 
absence of sufficient evidence to the contrary, we conclude the 
applicant has failed to sustain her burden of establishing that 
she has suffered either an error or an injustice.  Accordingly, 
we find no basis to recommend granting the relief sought in 
this application.


_______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that 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 BC-2012-
04722 in Executive Session on 31 July 2013, under the 
provisions of AFI 36-2603:

       , Panel Chair 
       , Member
       , Member
      

The following documentary evidence was considered in AFBCMR BC-
2012-04722:

    Exhibit A. DD Form 149, dated 3 Oct 2012, w/atchs.
    Exhibit B. Letter, AFPC/DPFFF, dated 2 Nov 2012.
    Exhibit C. Letter, SAF/MRBR, dated 26 Nov 2012.
    Exhibit D. Letter, Applicant, 12 Dec 2012.
    Exhibit E. Letter, SAF/GCM, dated 16 Oct 2006.
    Exhibit F. Letter, SAF/MRBC, dated 27 Jun 2013.




								 					
					Panel Chair