RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01987
COUNSEL:
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased spouses records be corrected to reflect that he
elected spouse only coverage under the Survivor Benefit Plan
(SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She did not go to the office with her spouse when he signed his
retirement papers. She believed that she would be named as his
beneficiary and he told her that she would receive his pension.
In 1987, when he died, they were still married. She filed for
the SBP annuity and was informed that her husband never elected
SBP spouse coverage. She recently found out she could apply for
correction to his records.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member retired on 1 Mar 73.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends approval. DPSIAR states the U.S. Court of
Claims has consistently ruled that widows who are not given
notice of their sponsors election are entitled to full SBP
coverage.
DPSIAR notes that in all of these cases, the facts were
essentially the same as in this case except the applicant failed
to request correction within six years of the members death and
her notarized statement claiming the member had told her over
and over again that she was to receive his pension does not meet
the standard criteria for a Barber affidavit, i.e., (1) she was
not notified at the time of his retirement that he did not elect
SBP coverage on her behalf; and (2) her sworn statement, to
satisfy the legal requirement, must include: I state, under
penalty of perjury of the laws of the United States, that the
foregoing is true and correct. I certify this statement is made
with full knowledge of the penalty for making false statements
(18 U.S.C. 1001 provides for a fine or not more than 5 years in
prison, or both).
DPSIAR states that in the event relief is granted and the Barring
Act is waived all unpaid contributions to the SBP that would have
been deducted from the members retired pay through the date of
his death (approximately $21,000) will be collected for any
annuity payment the applicant would become entitled to receive.
The Defense Enrollment Eligibility Reporting System (DEERS)
reflect the parties were married on 30 Jun 56.
Microfiche records from the Air Force Accounting and Finance
Center (AFAFC) show the member declined SBP coverage prior to his
1 Mar 73 retirement. Finance records are routinely destroyed six
years after a retirees death and there is no longer a copy of
the members election form or evidence that the required notice
was sent to the applicant. The decedent did not elect coverage
for the applicant during the SBP open enrollment authorized by
Public law 97-35 (1 Oct 81 to 30 Sep 82)
The former servicemember died on 22 Jan 87.
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant provided a copy of the notarized statement as
requested by DPSIAR above.
The applicants complete submission, 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. Sufficient relevant evidence has been presented to
demonstrate the existence of an injustice. After a thorough
review of the available evidence, we are persuaded that
corrective action is warranted in this case. In this respect, we
note that since the applicant has provided a notarized statement
that she was not notified at the time of the members retirement
that he did not elect SBP coverage on her behalf and in view of
the findings in Barber, we agree with the favorable
recommendation of the Air Force office of primary responsibility
and noting the recommends granting the applicants request. In
view of the above, we recommend the applicants records be
corrected as set forth below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to FORMER MEMBER, be corrected to show that on 1 March
1973, he elected spouse only coverage based on full retired pay
under the Survivor Benefit Plan, naming APPLICANT as the eligible
beneficiary.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 13 Mar 13, under the provisions of AFI 36-
2603:
, Panel Chair
, Member
, Member
All members voted to correct the record as indicated. The
following documentary evidence was considered in AFBCMR BC-2012-
01987:
Exhibit A. DD Form 149, dated 25 Apr 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 2 Jul 12.
Exhibit C. Letter, SAF/MRBR, dated 7 Aug 12.
Exhibit D. Letter, Applicant, dated 13 Aug 12, w/atchs.
PANEL CHAIR
AF | BCMR | CY2012 | BC-2012-01517
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). _________________________________________________________________ AIR FORCE...
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 | CY2009 | BC-2009-01754
In support of the application, the applicant submits a copy of her final divorce decree and her former spouse's death certificate. Moreover, there is no divorce decree requiring SBP (perhaps because it was not within court authority to order it at that time). The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states a former military spouse...
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 | CY2013 | BC-2011-02061
_______________________________________________________________ STATEMENT OF FACTS: According to the information provided by the Air Force office of primary responsibility, the applicant and the decedent were married on 29 May 1961. After the death of the retired member, the widow provided a sworn statement that she did not receive notification that her husband had declined SBP coverage. To date, a response has not been received (Exhibit C).
AF | BCMR | CY2013 | BC-2013-00672
They note that the record should be corrected to show that, effective 30 Nov 76, the decedent elected spouse only SBP coverage based on full retired pay. In this case, as in all Barber cases, the facts are essentially the same: there is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that she did not receive notification that the decedent had declined SBP coverage. ________________________________________________________________ THE...
AF | BCMR | CY2011 | BC-2011-02192
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02192 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). The service member elected spouse only coverage under the SBP at full retirement pay. Since the applicant...
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 | CY2009 | BC-2009-02010
There is no evidence the member submitted a valid former spouse election within one year following their divorce. The Legal Advisor states the widow became the SBP beneficiary by operation of law when the member died in Jun 05 and is currently receiving SBP payments. We note the opinion and recommendation of the SAF/MRB Legal Advisor that as an operation of law the member’s spouse is the legal beneficiary unless a legally effective election or deemed election (pursuant to a court order)...