RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03529
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses records be changed to show he elected former
spouse coverage under the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former spouse stopped the SBP, even though their divorce
decree required that he maintain former spouse SBP.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was provided an advisory opinion (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 members 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 that the
service member and the applicant married on 5 Dec 62. Records
from the Air Force Accounting and Finance Center (AFAFC) reflect
the service member elected spouse only coverage based on full
retired pay prior to his 1 Apr 88 retirement. The parties
divorced on 1 Jan 98, and their agreement, incorporated by the
court order, required the service member to maintain the
applicant as his former spouse SBP annuitant. There is no
evidence either party submitted a valid former spouse election
during the first year following their divorce. The Defense
Finance and Accounting Center-Cleveland Center (DFAS-CL)
suspended the service members SBP coverage effective the date of
their divorce, and premiums stopped being collected from his
retired pay. The Defense Enrollment Eligibility Reporting System
(DEERS) reflects the member and his current spouse married on 22
Jun 98. There is no evidence the service member requested SBP
spouse coverage be established on her behalf; however, by
operation of law his current spouse became the eligible spouse
beneficiary on the first anniversary of their marriage. The
service member died on 18 May 12. The decedents spouse has not
applied for the SBP annuity which would be approximately $2,123
per month (after recovery of the retroactive SBP premium debt of
more than $28,000 plus interest).
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 24 Sep 12 and 25 Mar 13, copies of the evaluations were
forwarded to the applicant for review and comment within 30 days
(Exhibits C and E). 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 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 applicants complete
submission in judging the merits of the case; however, we are not
persuaded the applicant has sustained her burden of establishing
the existence of either an error or injustice in the record.
While we note the divorce decree awarded the applicant continued
coverage under the SBP; neither the former service member nor the
applicant submitted a valid election within the one-year period
required by law to establish former spouse coverage. Because of
this, by operation of law the former service members current
spouse became the legal beneficiary of his SBP. We are not
unsympathetic to the applicants dilemma; however, only in the
most unique of circumstances would the Board make a ruling in a
case that involves two claimants to a benefit that only one of
them can receive. In view of the foregoing, and 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 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 Docket Number
BC-2012-03529 in Executive Session on 7 May 13, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Aug 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 11 Sep 12.
Exhibit C. Letter, SAF/MRBR, dated 24 Sep 12.
Exhibit D. Letter, SAF/GCM, dated 18 Oct 06.
Exhibit E. Letter, AFBCMR, dated 25 Mar 13, w/atch.
Panel Chair
AF | BCMR | CY2011 | BC-2011-04870
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AF | BCMR | CY2011 | BC-2011-00062
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_______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. While we do not take issue with the applicants assertion that her divorce decree ordered her deceased former husband to continue coverage for her under the SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. ...
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_________________________________________________________________ ADDITIONAL AIR FORCE ADVISORY: The AFRBA Legal Advisor recommends denial and states in part that despite the May 03 court order directing the member to convert to former spouse coverage, federal law makes the election unavailable when the deemed election is not timely filed. If there were not a competing eligible beneficiary, the AFRBA Legal Advisor would recommend correcting the record, but there is. The complete AFRBA...
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In support of the application, the applicant submits a copy of her final divorce decree and her former spouse's death certificate. Moreover, there is no divorce decree requiring SBP (perhaps because it was not within court authority to order it at that time). The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states a former military spouse...
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On 12 Oct 90, the parties divorced and the applicant was ordered to elect SBP on behalf of his former spouse. Neither party submitted an election for former spouse coverage within the first year of the divorce; however, the member did not request his former spouse be removed as the SBP beneficiary. The complete DPSIAR evaluation is at Exhibit B.
AF | BCMR | CY2011 | BC-2011-00737
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AF | BCMR | CY2013 | BC-2012-02265
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. ...
AF | BCMR | CY2012 | BC-2012-03982
The former service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. She has not provided any evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law.