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AF | BCMR | CY2013 | BC-2012-02265
Original file (BC-2012-02265.pdf) Auto-classification: Denied
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 

 
 
DOCKET NUMBER:  BC-2012-02265 
COUNSEL:  NONE 
HEARING DESIRED:  YES 

IN THE MATTER OF: 
   
   
   
 
_________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
Her former spouse’s record be changed to show he elected former 
spouse coverage under the Survivor Benefit Plan (SBP). 
 
_________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
Her  former  spouse  indicated  verbally  and  in  writing  that  he 
applied for spousal survivor benefits coverage per the direction 
of their divorce decree.  It is also indicated on his Retirement 
Account Statement. 
 
The  applicant's  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
_________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The  Defense  Enrollment  Eligibility  Reporting  System  (DEERS) 
reflects  the  decedent  married  his  second  spouse  on  20  December 
1995 and divorced on 3 June 2003. 
 
The applicant was also provided an advisory (Exhibit C) prepared 
by SAF/GCM on similar cases considered by the Board.  The Board 
has been advised that it can consider cases involving potential 
claims  by  more  than  one  spouse  or  former  spouse  if  there  is 
evidence  that  the  member  or  former  spouse  timely  notified  the 
Government  within  one  year  after  the  divorce  was  final,  or  if 
there  are  extraordinary  circumstances  that  would  justify 
correction  of  the  record.    For  example,  extraordinary 
circumstances might exist if the current spouse signs a notarized 
affidavit saying she waives her potential claim to the survivor 
benefits  in  favor  of  complying  with  the  member’s  obligations 
under the divorce agreement. 
 
The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force which is at Exhibit B. 
_________________________________________________________________ 
 
 
 

AIR FORCE EVALUATION: 
 
AFPC/DPSIAR makes no recommendation.  DPSIAR states the service 
member  and  the  applicant’s  divorce  decree  ordered  the  service 
member to take all necessary steps to continue his participation 
in the SBP, including electing coverage within one year from the 
date  of  the  judgment.    There  is  no  evidence  either  party 
submitted  a  valid  former  spouse  election  during  the  first  year 
following  their  divorce.    DFAS-CL’s  SBP  records  continued  to 
reflect the applicant’s name and date of birth (15 February 1938) 
as the eligible spouse beneficiary. 
 
The  former  service  member’s  wives  became  the  eligible  spouse 
beneficiary  on  the  first  anniversary  of  their  marriage,  even 
though  the  service  member  did  not  notify  the  finance  center  of 
his  multiple  changes  in  marital  status.    SBP  premiums  were 
deducted  from  the  service  member’s  retired  pay  until  his 
9 February  2012  death.    The  widow  applied  for  and  is  currently 
receiving SBP monthly payments of $343 (gross). 
 
The DPSIAR complete evaluation is at Exhibit B. 
 
_________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
On  31  October  2012  and  17  January  2013,  the  evaluation  was 
forwarded to the applicant for review and comment within 30 days 
(Exhibit D & F).  As of this date, this office has received no 
response. 
 
_________________________________________________________________ 
 
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.    The 
applicant  has  not  demonstrated  that  extraordinary  circumstances 
exist  as  required  for  this  Board  to  grant  relief  in  cases  of 
competing SBP beneficiaries.  We took notice of the applicant’s 
complete submission in judging the merits of the case.  While we 
note  the  divorce  decree  awarded  the  former  spouse  continued 
coverage under SBP, neither the applicant nor the former spouse 
made a deemed election within one year as required by law.  Since 
it appears the applicant’s third spouse gained entitlement to the 
benefit  by  operation  of  law,  and  there  has  been  no  showing  of 
extraordinary  circumstances,  we  are  precluded  from  granting  the 

 

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former  spouse  the  SBP  benefit.    Therefore,  unless  proof  of  a 
timely  election  of  former  spouse  coverage  is  provided  or  the 
third  spouse  relinquishes  her  entitlement,  we  find  no  basis  to 
grant the applicant’s request. 
 
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 issues involved.  
Therefore, the request for a hearing is not favorably considered. 
 
_________________________________________________________________ 
 
THE BOARD DETERMINES THAT: 
 
The  applicant  be  notified  the  evidence  presented  did  not 
demonstrate  the  existence  of  an  error  or  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-2012-02265 in Executive Session on 6 March 2013, under 
the provisions of AFI 36-2603: 
 
 
The  following  documentary  evidence  pertaining  to  AFBCMR  Docket 
Number BC-2012-02265 was considered: 
 
  Exhibit A.  DD Form 149, dated 22 May 2012, w/atchs. 
  Exhibit B.  Letter, AFPC/DPSIAR, dated 26 June 2012. 
  Exhibit C.  Letter, SAF/GCM, dated 17 April 2007. 
  Exhibit D.  Letter, Applicant, dated 31 October 2012. 
  Exhibit E.  Letter, Counsel, dated 12 November 2012. 
  Exhibit F.  Letter, AFBCMR, dated 17 January 2013. 
 
 
 
 
 

 

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