RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-03921
(DECESASED) COUNSEL: NONE
(APPLICANT) HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
The decedents Survivor Benefit Plan (SBP) election be changed
to former spouse coverage.
APPLICANT CONTENDS THAT:
The decedent did not realize that he had to change his record to
reflect former spouse coverage based on the divorce decree.
He continued to pay the premiums each month to make sure that
she would be taken care of. Neither of them remarried.
The Board should find it in the interest of justice to waive the
excuse to timely file because the decedent had problems with
alcohol and possibly forgot. Also, the Air Force had the wrong
address.
In support of her request, the applicant provides a personal
statement, copies of her marriage license, divorce decree,
decedents death certificate, and DD Form 214, Certificate of
Release or Discharge from Active Duty, issued 31 Mar 93 and
various other documents associated with her request.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
According to the death certificate, provided by the applicant,
the decedent died on 22 Jul 13 and had not remarried.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends granting relief. Absent evidence of a
competing claimant, it would be appropriate to correct the
decedent's record to reflect former spouse coverage based on the
previous reduced level of retired pay under the SBP, naming the
applicant as the former spouse beneficiary, which was
established effective 3 Dec 04. Approval should be contingent
upon recovery of all applicable SBP premiums.
On 2 Oct 71, the applicant and the decedent were married. The
decedent elected spouse only SBP coverage based on a reduced
level of retired pay prior to his 1 Apr 93 retirement. The
parties divorced on 2 Dec 04, and in the Agreement, incorporated
in the divorce decree, the decedent agreed to pay SBP premiums
currently in place for the benefit of the applicant. 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. 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 decedents retired pay until his 22 Jul 13 death. There is
no evidence either party remarried, and accordingly, there is no
competing claimant.
The complete DPFFF evaluation is attached at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Through her Member of Congress, she reiterates her original
contentions that the decedent wanted her to have the SBP
annuity.
In further support of her request, the applicant provides a
notarized affidavit confirming that she is not married and to
her knowledge the decedent did not remarry.
The applicants complete response, 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 timely filed.
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 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. Therefore, we recommend the
applicants 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 FORMER MEMBER, be corrected to show that on
3 Dec 04, he elected to change his Survivor Benefit Plan (SBP)
spouse only 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-2013-03921 in Executive Session on 9 Oct 2014 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 15 Aug 13, w/atchs.
Exhibit B. Memorandum, AFPC/DPFFF, dated 17 Oct 13.
Exhibit C. Letter, SAF/MRBR, dated 8 Nov 13.
Exhibit D. Electronic Mail, Applicant, dated 12 Jan 14, w/atch.
Exhibit E. Letter from Congressman, dated 24 Mar 14, w/atch.
Exhibit F. Affidavit, Applicant, dated 21 Aug 14.
SECRETARY OF THE AIR FORCE
WASHINGTON JUL 2 2 2015
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
FOR CORRECTION OF MILITARY RECORDS (AFBCMR) SUBJECT: AFBCMR Docket
Number: BC-2013-03921
I have carefully reviewed the AFBMCR application submitted by XXXXXXXX
("Applicant"), former spouse of XXXXXXX ("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 cannot adequately investigate and rule on such a
matter when there are competing interests, and granting relief to the applicant would result in
property being taken away from another party whose interests cannot be adequately represented
through 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 appropriate court.
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