RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-02043 

 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her deceased former spouse records be corrected to reflect former 
spouse coverage under the Survivor Benefit Plan (SBP) naming her 
as the eligible beneficiary. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

Her former spouse retired on 1 Jun 73. They divorced on 6 Nov 
75. She was excluded as beneficiary of the SBP from the date of 
their divorce. Her spouse was ordered by the divorce decree to 
continue former spouse coverage but he failed to do so. He was 
required to elect former spouse coverage during an open season 
but again failed to do so. 

 

She was notified of the death of her former spouse by a former 
in-law. The death certificate is in error and lists a new 
spouse. If her former spouse had elected SBP coverage for his 
new wife, she would have been required to waive her rights to SBP 
coverage. She is barred from receiving the SBP annuity. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

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. On 6 Nov 75, the parties divorced before 
the laws controlling the SBP authorized former spouse coverage; 
therefore, the applicant lost eligibility as a spouse beneficiary 
on the date of divorce and the SBP converted to child only 
coverage. 

 

The property settlement required the member to retain the 
applicant as primary beneficiary on his civilian insurance 
policy. On 5 Feb 80, the findings and order of a civil action 
suit contains a reference to include “military insurances” but does not specifically mention the SBP. The court document 


contains a statement that the member testified he remarried 
15 Dec 78. The decedent’s records in the Defense Enrollment 
Eligibility Reporting System (DEERS) contain no information he 
obtained an identification card for a subsequent spouse. There 
was no child beneficiary eligible to receive SBP payments 
effective Feb 90 when the youngest child attained age 22. There 
is no evidence the member submitted an election for former spouse 
coverage during the opportunities provided by Public Laws 98-84 
or 99-145. 

 

On 17 Sep 90, the member died and his death certificate reflects 
he was married to S---- at the time of his death. However, the 
Defense Finance and Accounting System-Cleveland Center (DFAS-CL) 
is not paying SBP to any individual based upon the decedent’s 
military service. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

DPSIAR recommends denial. 

 

DPSIAR notes the decedent’s spouse became an eligible SBP 
beneficiary on the first anniversary of their marriage by 
operation of law. However, there is no evidence she applied for 
payment of the SBP within six years of the member’s death as 
required by the Barring Act. The Air Force office of primary 
responsibility searched the internet for the widow, but did not 
contact the woman they located in Colorado Springs, CO. Since no 
SBP annuity would be payable to her because she did not file a 
claim for SBP within six years of the member’s death, DPSIAR is 
not certain she is considered as a competing claimant. 

 

The complete DPSIAR evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant’s counsel reiterates many of the earlier 
contentions and states the death certificate reflecting 
S----- B---- as the decedent’s wife cannot be substantiated. 
There is also a discrepancy in the decedent’s rank. The term 
“military insurances” refers to insurances that existed at the 
time of marriage which included spousal benefits. The decedent 
failed to elect former spouse coverage in violation of the court 
order. Discussions regarding S----- B---- as the eligible SBP 
beneficiary by operation of law on the first anniversary of their 
marriage are moot since these parties were never in fact married. 
There is no record of marriage at the time of his death. The 
death certificate is erroneous. There is no record of the 
decedent’s remarriage; therefore, there is no eligible competing 
claimant the Board should grant the requested relief. 


 

The counsel’s complete statement 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. 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 their 
rationale as the basis for our conclusion that the applicant has 
not been the victim of an error or injustice. While counsel 
argues the former member never married; the evidence of record, 
specifically, the death certificate states otherwise. We note 
counsel contentions that the former member was in violation of 
the court order because he failed to elect former spouse 
coverage. However, as pointed out by DPSIAR, the parties 
divorced on 6 Nov 75, prior to the laws controlling the SBP 
authorizing former spouse coverage. Therefore, we do not find 
the failure of the former member to comply with the terms of the 
divorce decree sufficient to perpetuate an injustice against the 
current spouse. Although the AFBCMR has the authority, it should 
not rule on a possible dispute between two claimants to a benefit 
that only one of them can receive. Furthermore, it is not 
appropriate for the Board to adjudicate such a dispute since that 
task is more properly left to the courts. Absent persuasive 
evidence that she was denied rights to which she was entitled, we 
find no basis to recommend granting the relief sought in this 
application. 

 

4. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved. Therefore, the request for a hearing is not favorably 
considered. 

 

_________________________________________________________________ 

 


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 this application in 
Executive Session on 13 Mar 13, under the provisions of AFI 36-
2603: 

 

 , Panel Chair 

, Member 

, Member 

 

The following documentary evidence was considered in AFBCMR BC-
2012-02043: 

 

 Exhibit A. DD Form 149, dated 7 May 12, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 15 Jun 12. 

 Exhibit C. Letter, SAF/MRBR, dated 25 Jun 12. 

 Exhibit D. Letter, Counsel, dated 11 Jul 12 w/atchs. 

 

 

 

 

 

 Panel Chair