RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02704

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

She be designated the former spouse beneficiary on her deceased former husband’s Survivor Benefit Plan (SBP).  

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APPLICANT CONTENDS THAT:

The divorce decree between her and her former husband is unjust.  She did not even know about the divorce until her husband passed away.  The witness who testified in court that she knew about the divorce hearing has now admitted she did not know about the divorce.  Her former husband had dementia at the time their divorce papers were filed, but he wanted to know she would be taken care of after he passed.  That is why he paid his SBP until the day he passed away.

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

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STATEMENT OF FACTS:

On 8 Sep 10, the former military member passed away.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial, indicating there is no evidence of an error or injustice.  A person’s eligibility to receive a spouse SBP annuity terminates upon divorce.  However, the law provides two mechanisms for changing spouse coverage to former spouse coverage.  One of the following actions must be taken within the first year following divorce:  (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf.  If the latter case, the former spouse must provide legal documentation showing the member agreed, or the court ordered the member to establish former spouse coverage.  If neither the member nor the former 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 the Defense Finance and Accounting Service—Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member’s death. 

The deceased former member was married to his first wife when he retired effective 1 Nov 67.  He elected spouse only SBP coverage based on full retired pay.  On 7 Aug 90, he and his first wife divorced; however, there is no evidence former spouse coverage was established on her behalf.  On 3 Aug 04, he married the applicant and she became the eligible spouse beneficiary on the first anniversary of their marriage.  SBP premiums continued to be deducted from the member’s retired pay until 1 Oct 08, when he became “paid up.”  On 26 Jan 09, the deceased member and the applicant divorced, and the divorce decree did not address SBP.  On 8 Sep 10, the member passed away.  He did not remarry before his death.   

The applicant has provided no medical documentation to substantiate her claim her former spouse had dementia.  Further, the divorce decree she provided did not include language that would entitle her to former spouse SBP coverage.  The law is very specific that legal documentation must be provided that reflects the member agreed, or the court ordered the member to establish former spouse coverage.  There is no basis in law to approve this request.  

A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23 Aug 13 for review and comment within 30 days.  In rebuttal, she submitted notes from an appointment her deceased husband had on 19 Jun 08 with a Department of Veteran Affairs Licensed Clinical Social Worker indicating he suffered from “Dementia NOS” among other issues, along with a significant amount of documentation related to his health and military career (Exhibit E).

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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.  After a thorough review of the evidence of record and the applicant’s complete submission, we are not convinced that corrective action is warranted.  While the applicant makes a variety of arguments intended to undermine the validity of her divorce from the deceased former member, as an administrative body it would be improper for this Board to evaluate actions taken by the Court as a means to determine whether or not she is the victim of an error or injustice with respect to the deceased former member’s SBP election.  Instead, we must assume the actions of the Court, in consideration of all the evidence before it, made a reasoned and knowing decision that was within its authority and therefore must accept the validity of the court’s decision with respect to the dissolution of the applicant’s marriage to the deceased former member.  Therefore, in view of the fact that we must presume the action of the Court to dissolve the marriage was proper, and the dissolution decree provides the applicant no entitlement to former spouse coverage under the Survivor Benefit Plan (SBP), we conclude the applicant does not have proper standing to the applicant’s marriage to the decedent.  We took notice of the applicant’s complete submission, to include her rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-02704 in Executive Session on 25 Mar 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member



The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02704 was considered:

	Exhibit A.  DD Form 149, dated 30 May 13, w/atchs.
	Exhibit B.  Deceased's Available Military Personnel Records
	Exhibit C.  Letter, AFPC/DPFFF, dated 26 Jul 13.
	Exhibit D.  Letter, SAF/MRBR, dated 23 Aug 13.
	Exhibit E.  Letter, Applicant, dated 30 Sep 13, w/atchs.




                                   
                                   Panel Chair