RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-02998
XXXXXXX (MEMBER) COUNSEL: NONE
XXXXXXX (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).
________________________________________________________________
APPLICANT CONTENDS THAT:
By decree of divorce, she was named a partial beneficiary of her
former spouses survivor benefits. She agreed to the conversion
of the SBP election from Spouse Only, to Former Spouse
coverage. However, she was not aware she had one year from the
date of their divorce to submit a deemed election.
In support of her request the applicant provides copies of her
Certificates of Marriage, information regarding the members
retirement ceremony, Final Judgment and Decree of Divorce.
Her complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The SBP was established by Congress effective 21 Sep
1972 (Public Law (PL) 92-425) to provide a monthly income to
survivors of retired military personnel upon the member's death
when retired pay stops.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF does not provide a recommendation because it involves
two potential SBP beneficiaries. They do note that Defense
Enrollment Eligibility Reporting System (DEERS) records show the
applicant and the member married on 4 Dec 1967. The member
retired effective 1 Feb 1983 and elected spouse and child SBP
coverage based on a reduced amount of retired pay. The parties
divorced on 9 Nov 1988, and the divorce decree ordered the
member to name the applicant and his children as the
beneficiaries of the SBP annuity. However, there is no evidence
either party submitted a valid former spouse election during the
required time following their divorce. On 15 Aug 1989, the
member married his current spouse. However, he did not notify
the Defense Finance and Accounting Service - Cleveland Center
(DFAS-CL) of the change in his marital status or request that
spouse coverage be established in his new spouses behalf.
Nevertheless, she became the eligible SBP beneficiary by
operation of the law on the first anniversary of their marriage.
DFAS-CL records erroneously reflect the applicant's name and
date of birth as the eligible spouse beneficiary and SBP
premiums continued to be deducted from the member's retired pay
until 1 Feb 2013, when he met the "paid-up" requirements
authorized under Public Law 105.26.
The complete DPFFF evaluation is at Exhibit B.
________________________________________________________________
FORMER MEMBERS REVIEW OF THE AIR FORCE EVALUATION:
DPFFF incorrectly lists his divorce date as 9 Nov 1988 when in
fact the correct date is 9 Nov 1987. On 25 Oct 1989, he
contacted DFAS and requested that SBP be reinstated for his new
spouse and to maintain coverage for his two minor children. He
never received a response. His ex-spouse did not take the
action required to enroll in SBP within the required timeframe
and he subsequently took action to make his new spouse the SBP
beneficiary.
The members complete response, with attachment, is at Exhibit D.
________________________________________________________________
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
On 4 Mar 2014, a copy of the SAF/GCM memorandum 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. We took notice
of the applicants complete submission in judging the merits of
the case; however, the applicant has failed to sustain her
burden that she has suffered either an error or injustice.
Neither the applicant nor the former spouse submitted a valid
election within the one-year period required by law to establish
former spouse coverage. Although the AFBMCR has the authority,
it should not rule on a 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. In view of the
foregoing, 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 this application
in Executive Session on 24 Apr 2014, under the provisions of AFI
36-2603:
, Vice Chair
, Member
, Member
The following documentary evidence was considered in AFBCMR BC-
2013-02998:
Exhibit A. DD Form 149, dated 13 Jun 2013, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 22 Jul 2013.
Exhibit C. Letters, SAF/MRBR, dated 15 Aug 2013.
Exhibit D. Letter, Member, dated 3 Sep 2013, w/atch.
Exhibit E. Letter, SAF/GCM, dated 18 Oct 2006.
Exhibit F. Letter, SAF/MRBC, digitally signed 4 Mar 2014.
Vice Chair
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