RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03731
		COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED


APPLICANT REQUESTS THAT:

Her late husband’s Survivor Benefit Plan (SBP) election be changed 
to former spouse coverage.


APPLICANT CONTENDS THAT:

She and the deceased were married upon his retirement in Jul 95.  
Their divorce was finalized 9 Oct 98 and the decree stated that 
she would remain the SBP beneficiary.  The divorce decree order 
her ex-spouse to maintain SBP coverage for her.

The Board should waive her untimely application because she was 
not made aware of the procedures to submit a deemed election. 

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


STATEMENT OF FACTS:

According to the divorce decree, dated 9 Oct 98, the applicant and 
the decedent divorced.  

According to the death certificate issued 8 May 13, on 18 Feb 13, 
the decedent died with no surviving spouse.  

The applicant provided a marital status affidavit, dated 21 Aug 
14 (Exhibit E).


AIR FORCE EVALUATION:

AFPC/DPFFF recommends approval.  Absent evidence of a competing 
claimant, it would be appropriate to correct the decedent's record 
to reflect former spouse coverage based on full retired pay [sic] 
under the SBP, naming the applicant as the former spouse 
beneficiary, was established effective 10 Oct 98.  Approval should 
be contingent upon recovery of all applicable SBP premiums.

On 14 Feb 84, the applicant and the decedent were married.  The 
decedent elected spouse and child SBP coverage based on a reduced 
level of retired pay prior to his 1 Jul 95 retirement.  The 
parties divorced on 9 Oct 98, and the divorce decree ordered the 
member to maintain the deceased as the SBP beneficiary.  There is 
no evidence either party submitted a valid election to change 
spouse to former spouse coverage within the first year following 
their divorce as the law requires.  The youngest child lost 
eligibility due to age effective 1 Jul 04.  DFAS-CL records 
continued to reflect the applicant’s name and date of birth as the 
eligible spouse beneficiary and premiums continued to be deducted 
from the decedent's retired pay until his 18 Feb 13 death.  There 
is no evidence either party remarried, and accordingly, there is 
no competing claimant.

The complete DPFFF evaluation is at Exhibit B.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant agrees with the recommendation in the advisory 
opinion that the decedent’s SBP election be changed from spouse to 
former spouse coverage on her behalf, based on full retired pay.  
The decedent’s intentions are clear in the divorce decree and 
evidenced by the fact that he allowed premiums to be deducted from 
his retirement pay in her name up until his death.

The decedent’s complete response, with attachment, is at 
Exhibit D.


ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPFFF notes that in their original evaluation, the 
recommended relief was incorrectly stated.  Therefore, DPFFF 
revised their opinion and now states that absent evidence of a 
competing claimant, it would be appropriate to correct the 
decedent's record to reflect former spouse coverage based on a 
reduced level of retired pay under the SBP vice full retired pay, 
naming the applicant as the former spouse beneficiary effective 
10 Oct 98.  Approval should be contingent upon recovery of all 
applicable SBP premiums.

The complete DPFFF evaluation is at Exhibit F.


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant acknowledges the change to the advisory opinion to 
recommend the decedent’s record be corrected to reflect former 
spouse coverage based on the previous reduced level of retired 
pay.  However, she looks forward to the conclusion of her 
application and will rely on the Board’s decision in this matter. 

The applicant’s complete response is at Exhibit H.



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 error or injustice warranting corrective action.  
Having carefully reviewed this application, we agree with the 
revised recommendation of the Air Force office of primary 
responsibility and adopt the rationale expressed as the basis for 
our decision that the applicant has been the victim of either an 
error or an injustice.   Accordingly, we recommend the former 
member’s record be corrected to the extent indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to the DECEDENT be corrected to show that on 10 Oct 98, 
he elected to change his Survivor Benefit Plan (SBP) coverage to 
former spouse coverage, based on a reduced level of retired pay, 
naming the APPLICANT as the former spouse beneficiary.  


The following members of the Board considered AFBCMR Docket Number 
BC-2013-03731 in Executive Session on 09 Oct 14 and 1 Dec 14 under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The 
following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 30 Jul 13, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 23 Sep 13.
	Exhibit C.  Letter, SAF/MRBR, dated 29 Oct 13.
	Exhibit D.  Letter, Applicant, dated 13 Nov 13. 
	Exhibit E.  Affidavit, Applicant, dated 21 Aug 14.
	Exhibit F.  Letter, AFPC/DPFFF, dated 28 Oct 14.
	Exhibit G.  Letter, SAF/MRBR, dated 4 Nov 14.
	Exhibit H.  E-Mail, Applicant, dated 19 Nov 14.






SECRETARY OF THE AIR FORCE
WASHINGTON



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD






JUL 2 2 2015


           FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Docket Number: BC-2013-03731

      I have carefully reviewed the AFBMCR application submitted by ("Applicant"), former 
spouse of ("Member") and the contents of the case file to include the AFPC Advisory and 
applicant's rebuttal. While I am sympathetic to the applicant's plight, I find that the AFBCMR 
cam10t adequately investigate and rule on such a matter when there are competing interests, and 
granting relief to the applicant would result in prope1ty being taken away from another party 
whose interests cannot be adequately represented in the AFBCMR process.

      In fact, the AFBCMR has consistently refused to grant relief to applicants when doing so 
would deprive another party of a benefit to which they are legally entitled, as could be the case 
here.  The court, not the AFBCMR, is the appropriate venue to weigh competing interests while 
ensuring the legal interests of all parties are being protected, and this case has pertinent matters 
relating to the decedent's estate that are best left to the State courts to resolve rather than the 
Board.

      Therefore, I decline to adopt the recommendation of the panel.  This action does not 
preclude the applicant from seeking reconsideration based on newly discovered relevant 
information or, better yet, from seeking redress through the approp1iate court.