AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 
  DOCKET NUMBER: BC-2011-04704 
  COUNSEL: NONE 
  HEARING DESIRED: YES 

IN THE MATTER OF: 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
Her former spouse’s (decedent) records be corrected to reflect 
he made a timely election for former spouse coverage under the 
Survivor Benefit Plan (SBP). 
 
_______________________________________________________________
_ 
 
APPLICANT CONTENDS THAT: 
 
She and the decedent agreed that she would be the irrevocable 
SBP beneficiary as reflected in their divorce decree.  She was 
not aware the decedent revoked this benefit. 
 
In support of her request the applicant provides copies of her 
separation agreement and divorce decree. 
 
Her complete submission, with attachments, is at Exhibit A. 
 
_______________________________________________________________ 
 
STATEMENT OF FACTS: 
 
According to the information provided by the Air Force office 
of primary responsibility (OPR), the applicant and the decedent 
were married on 1 Sep 1979 and divorced on 8 Jul 1999. In the 
Separation  Agreement,  incorporated  in  the  divorce  decree,  the 
decedent  agreed  to  name  the  applicant  as  the  irrevocable 
beneficiary  of  the  SBP.    However,  there  is  no  evidence  the 
Defense  Finance  and  Accounting  Service  -  Cleveland  (DFAS-CL) 
received  a  request  from  the  applicant  deeming  that  an  SBP 
election be made on her behalf during the first year following 
the date of their divorce 
 
The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office at 
Exhibit B. 
 
_______________________________________________________________ 
 
 
 

 

 

 

AIR FORCE EVALUATION: 
 
AFPC/DPSIAR  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  decedent’s  spouse  at  the  time  of  his  death  is 
currently  receiving  the  SBP  monthly  annuity.    The  decedent 
married his surviving spouse on 26 Jul 1999 and he retired on 
1 Apr  2003.    Prior  to  retiring,  he  was  counseled  on  the 
options  and  effects  of  the  SBP  by  a  SBP  counselor.    He 
elected  spouse  and  child  SBP  coverage  based  on  a  reduced 
level of retired pay, and his wife concurred  in his election. 
 
The complete DPSIAR evaluation is at Exhibit B. 
 
_______________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
On  19  Jan  2012,  the  applicant  requested  additional  time  to 
provide  supplementary  evidence  in  support  of  her  request  and 
her case was administratively closed. 
 
On  30  Jun  2012  the  applicant,  requested  her  application  be 
reopened.  She states that for almost 20 years, she dedicated 
her  life  to  supporting  the  decedent’s  Air  Force  career.    She 
chose  to  forego  a  career  to  support  the  decedent  because  he 
said the retirement benefits would sustain them both.  She did 
not  begin  a  professional  career  outside  of  the  home  until 
1994 and  completed  an  under  graduate  degree  in  2007.    They 
separated  after  18  years  of  marriage  and  their  divorce  was 
finalized on 8 Jul 1999. 
 
When the separation agreement was drafted, he agreed that she 
would be deemed the irrevocable SBP beneficiary.  He pushed for 
the divorce to be completed prior to their 20 year anniversary 
because he did not want her to have benefits. 
 
In May 2003, the month after he retired, the decedent drafted a 
note,  using  a  calculation  he  said  would  be  the  applicant’s 
portion of the community property.  He said he would later send 
her  confirmation  of  what  she  was  entitled  to.    However,  when 
asked for the confirmation, he told her he owed the Air Force 
money,  therefore,  his  Leave  and  Earnings  Statement  did  not 
accurately reflect his pay.  In her naiveté, she agreed that he 
would  send  a  monthly  check,  as  opposed  to  direct  deposit  as 
stipulated in the divorce decree. 
 
Within the year the decedent and his wife moved and she did not 
have contact with him.  She continued to receive monthly checks 
for $640.57 in the mail without a return address.  The checks 
began arriving later and later each month. 
 

 

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In Jan 2007 she contacted a veteran’s group and found that she 
could  petition  the  Air  Force  for  lost  community  property 
payments.  She learned he withheld over $225.00 per month for 
four years.  She also became aware he did not abide by their 
separation  agreement  and  divorce  decree  to  make  a  deemed 
election to establish her as the irrevocable SBP beneficiary. 
 
It was upon his death in Aug 2011 that she learned his second 
wife  was  receiving  the  SBP  payments.    His  dishonesty  and 
animosity towards her was the reason he did not abide by the 
court  order.    She  is  appealing  to  the  Board  to  honor  his 
initial  agreement  and  court  order  and  respect  the  sacrifices 
she made for nearly 20 years to support his military career. 
 
Her complete response, with attachments, is at Exhibit F. 
 
_______________________________________________________________ 
 
APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 
 
The  applicant  did  not  respond.    However,  the  widow  responded 
and states her deceased husband felt the SBP was for the care 
and  benefit  of  his  minor  children  and  therefore  when  they 
married, he named her and the minor child by his former wife as 
beneficiaries to insure the minor was cared for should he pass 
away.  That child aged out of eligibility in 2007. 
 
The widow’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.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  an  error  or  injustice.    We  took 
notice  of  the  applicant’s  complete  submission  in  judging  the 
merits  of  the  case,  including  her  response  to  the  Air  Force 
advisory.    However,  the  applicant  has  not  demonstrated  that 
extraordinary  circumstances  exist  that  are  required  for  this 
Board to grant relief in cases of competing SBP beneficiaries.  
We  do  not  take  issue  with  the  applicant’s  assertion  that  the 
decedent agreed to name her as the irrevocable beneficiary of 
the SBP.  Nevertheless, in violation of the Court’s order, he 
failed to convert the coverage to former spouse coverage within 
one year of their divorce as required by law.  Moreover, the 
applicant also failed to execute a deemed election for coverage 
within the one year timeframe.  In the absence of evidence that 
there was a “deemed election” by the applicant within one year 

 

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after  the  divorce,  the  Board  assumes  the  decedent’s  current 
spouse gained entitlement to the benefit by operation of law.  
Since  the  applicant  has  failed  to  demonstrate  that 
extraordinary circumstances exist that would justify correction 
of  the  record  by  this  Board,  we  can  only  grant  the  relief 
sought if the applicant provides proof of a timely election or 
the  decedent’s  widow  provides  notarized  consent  relinquishing 
her entitlement to the benefit.  Therefore, in the absence of 
evidence  to  the  contrary,  we  find  no  basis  to  recommend 
granting the requested relief. 
 
4.  The  applicant's  case  is  adequately  documented  and  it  has 
not  been  shown  that  a  personal  appearance  with  or  without 
counsel  will  materially  add  to  our  understanding  of  the 
issue(s) involved.  Therefore, the request for a hearing is not 
favorably considered. 
 
_______________________________________________________________ 
 
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  12  Feb  2013,  under  the  provisions  of 
AFI 36-2603: 
 

, Panel Chair  
, Member 
     , Member 
 
The following documentary evidence was considered in AFBCMR BC-
2011-04704: 
 
    Exhibit A. DD Form 149, dated 22 Nov 2011, w/atchs. 
    Exhibit B. Letter, AFPC/DPSIAR, dated 15 Feb 2012 
    Exhibit C. Letter, SAF/MRBR, dated 29 Feb 2012. 
    Exhibit D. Letter, Applicant, 22 Mar 2012. 
    Exhibit E. Letter, SAF/MRBR, 14 Jun 2012. 
    Exhibit F. Letter, Applicant, 30 Jun 2012, w/atchs. 
    Exhibit G. Letters, AFBCMR, dated 2 Jan 2013, w/atchs. 
    Exhibit H. Letter, Widow, dated 25 Jan 2013. 
 
 
 
 
 

 
 
Panel Chair 

  
  

 

 

 

 
 

 
 

 
 

 
 

 

 

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