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
2
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.
3
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