RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER: BC-2013-04848
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
Her late spouses record be changed to show he elected spouse
coverage under the Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
The name of spouse and dates to whom the decedent married is in
error.
The applicant's complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 1 April 1999, the decedent retired in the grade of senior
master sergeant.
The decedent and the applicant were married on 14 February 2002.
The decedent died on 2 September 2011.
The remaining relevant facts pertaining to this application,
extracted from the applicants military records, are contained
in the letter prepared by the appropriate office of the Air
Force at Exhibit B.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends denial. DPFFF states the former service
member was not married, but had dependent children; however, he
declined SBP coverage prior to his 1 April 1999 retirement.
When the former service member and the applicant married - he
did not request SBP coverage be established on the applicants
behalf within the first year of their marriage. There is no
evidence he submitted an election during the 2005 - 2006 open
enrollment period.
Although the applicant claims the name of the spouse and dates
to whom the former service member married was in error, she has
not provided any documentation to verify her claim. The former
service member completed a DD Form 2656, Data for Payment of
Retired Personnel, which reflects he was not married at the time
of his retirement. Defense Enrollment Eligibility Reporting
System (DEERS) records also reflect the former service member
was not married prior to his retirement date and the applicant
provided a copy of her marriage certificate to the former
service member which reflects their marriage was after his
retirement. There is no basis in law which would entitle the
applicant to the SBP. SBP is similar to commercial life
insurance in that an individual must elect to participate during
the opportunities provided by the law and pay the associated
premiums in order to have coverage. It would be inequitable to
those members, who chose to participate when eligible and
subsequently received reduced retired pay, and to other widows,
whose sponsors chose not to participate, to provide entitlement
to this widow on the basis of the evidence presented.
There is no evidence of Air Force error or injustice in this
case.
The complete DPFFF evaluation is at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states that she has been trying to obtain benefits
based on her late husbands passing. She received a letter from
the Defense Finance and Accounting Service (DFAS) office that is
in error. It states that they were divorced on 28 October
1998 which is not true. They married in 2002 and remained
married until his death on 2 September 2011. She researched and
discovered that her late spouse was in fact divorced on
28 October 1998 but from someone else. She was able to obtain
the accurate information based on public record from the records
department at the Okaloosa County Court. She has been fighting
the battle to obtain all benefits that she is qualified to
receive. She has lost her home and key material items they
accumulated through the years. She is appalled at the situation
that is occurring with regards to the claim of annuity benefits
for SBP. She has been denied benefits that she believes she may
be eligible for. She questions whether the records at DFAS are
correct. She demands that a complete audit be completed of her
late spouses records. It seems logical that if her late
spouses records at DFAS and the Department of the Air Force are
inaccurate, that perhaps his records of SBP elections may have
also been inaccurate or missing.
The applicants complete submission, 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 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 an injustice. We took
notice of the applicant's complete submission, to include her
rebuttal comments, 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 its rationale as the
basis for our conclusion that the former member did not submit a
valid election as required by law to establish spouse coverage.
With regard to the DFAS letter the applicant received, records
do reflect that the applicant did in fact receive an erroneous
letter from DFAS. Once the error was noted, a letter was sent
to the applicant apologizing for the inaccurate information.
However, this error does not negate the fact that there is no
record of receipt of an SBP election requesting SBP coverage for
the applicant within the first year of their marriage.
Therefore, in the absence of evidence to the contrary, we find
no basis to recommend granting the relief sought in this
application.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of an error or an 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.
The following members of the Board considered AFBCMR Docket
Number BC-2013-04848 in Executive Session on 6 January 2015,
under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2013-04848 was considered:
Exhibit A. DD Form 149, dated 16 October 2013, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 8 January 2014.
Exhibit C. Letter, SAF/MRBR, dated 24 January 2014.
Exhibit D. Letter, Applicant, dated 25 January 2014.
AF | BCMR | CY2014 | BC 2014 00704
He submitted DD Form 1882, for former spouse and child coverage; however, DFAS-CL did not honor the election because it was not received until after the one-year eligibility period. However, while the applicant contends the election for former spouse coverage was made within the required time, no evidence has been provided, to our satisfaction, that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. THE BOARD DETERMINES...
AF | BCMR | CY2013 | BC 2013 03356
She does not recall receiving a letter from the Air Force informing her of her spouses decision to decline SBP participation. There is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that the notification was not received. Exhibit C. Letter, SAF/MRBR, dated 19 Sep 13.
AF | BCMR | CY2013 | BC-2013-01181
The parties divorced on 23 Jan 1987, and the divorce decree ordered the conversion of the SBP annuity. However, we also note that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by the law. Exhibit D. Letter, SAF/MRBC, dated 31 Oct 2013, w/atch.
AF | BCMR | CY2012 | BC-2012-04722
However, we also note that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by the law. We are aware that in extraordinary circumstances, it is within the authority of the Board to correct a record if it finds it necessary to prevent an error or injustice. The following members of the Board considered AFBCMR BC-2012- 04722 in...
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There is no evidence the applicant received the required notice, in accordance with Public Law 92-425, that her husband elected less than maximum spousal coverage under SBP. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 30 September 1981, he made a timely and effective election for spouse and child(ren) coverage under the...
AF | BCMR | CY2014 | BC 2014 04332
In a letter dated 20 November 2014, AFPC/DPFFF invited the applicant to provide a copy of the court document that recognized her common law marriage to the decedent prior to their 20 November 2013 licensed marriage and a certified copy of the decedents death certificate. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member was married to his former spouse on 13 June 1987 and he elected spouse only SBP coverage prior to his 1 December 1988 retirement. Exhibit C....
AF | BCMR | CY2013 | BC-2013-00672
They note that the record should be corrected to show that, effective 30 Nov 76, the decedent elected spouse only SBP coverage based on full retired pay. In this case, as in all Barber cases, the facts are essentially the same: there is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that she did not receive notification that the decedent had declined SBP coverage. ________________________________________________________________ THE...
AF | BCMR | CY2013 | BC-2013-00566
________________________________________________________________ _ AIR FORCE EVALUATION: DPFFF recommends the former service members record be corrected to show he elected spouse only SBP coverage based on full retired pay effective 31 January 1973. Since it appears the applicant has not provided the requested information, the Board must deny the applicants request at this time. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be...
AF | BCMR | CY2014 | BC 2014 00125
The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends the requested relief be granted. Under the provisions of SBP, the spouses of married service members had to be informed when the service member declined SBP coverage, or elected less than the maximum level of coverage. A complete copy of the AFPC/DPFFF...
AF | BCMR | CY2013 | BC 2013 05676
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05676 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated the beneficiary for her former spouses Survivors Benefit Plan (SBP). As such, we find the death certificate provided by the applicant sufficient to conclude that the decedent was not married at the time of his death. ...