RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-01181
XXXXX (DECEASED) COUNSEL: NONE
XXXXX (APPLICANT) HEARING DESIRED: NOT INDICATED
________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses (decedent) records be corrected to reflect
he made a timely election for former spouse coverage under the
Survivor Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
In 1987, she agreed to the conversion of the SBP election from
Spouse Only, to Former Spouse coverage. However, she was
not aware she had one year from the date of their divorce to
submit a deemed election.
In support of her request the applicant provides copies of her
Final Judgment of Divorce, Certificate of Death and SBP election
Letter.
Her complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application are contained
in the letter prepared by the appropriate office of the Air
Force at Exhibit B.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF 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
applicant and the decedent married on 20 Oct 1970. The decedent
retired effective 1 Sep 1985 and elected spouse only SBP
coverage based on a reduced level of retired pay. The parties
divorced on 23 Jan 1987, and the divorce decree ordered the
conversion of the SBP annuity. However, there is no evidence
either party submitted a valid former spouse election during the
required time following their divorce. In Feb 1987, the finance
center suspended SBP premiums retroactive to the date of their
divorce. DEERS records show the decedent remarried on 5 Oct
1987, but he did not request that the Defense Finance and
Accounting Service - Cleveland Center (DFAS-CL) establish SBP
coverage for his surviving spouse. While there is no evidence
his widow has applied for payment of the SBP annuity, she became
the eligible spouse beneficiary on the first anniversary of
their marriage. The member died on 2 Jan 2013.
The complete DPFFF evaluation is at Exhibit B.
________________________________________________________________
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
On 7 Jun 2013 and 31 Oct 2013, copies of the Air Force
evaluation and SAF/GCM memorandum were forwarded to the
applicant for review and comment within 30 days. As of this
date, this office has received no response (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 error or injustice. The
applicant's complete submission was thoroughly reviewed and her
contentions were duly noted. However, we do not find the
applicant's assertions and the documentation presented in
support of her request sufficiently persuasive to grant the
requested relief. In this respect, we took note of the divorce
decree that ordered the conversion of the SBP annuity for the
applicant. 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. Although the AFBMCR has the authority, it
should not rule on a dispute between two claimants to a benefit
that only one of them can receive. Furthermore, it is not
appropriate for the Board to adjudicate such a dispute since
that task is more properly left to the courts. However, if the
deceased members surviving spouse submits a notarized statement
relinquishing her entitlement to the SBP, the Board may be
willing to reconsider the applicants appeal in consideration of
this evidence. In view of the foregoing, 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 this application
in Executive Session on 13 Dec 2013, under the provisions of AFI
36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered in AFBCMR BC-
2013-01181:
Exhibit A. DD Form 149, dated 13 Feb 2013, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 28 May 2013.
Exhibit C. Letter, SAF/MRBR, dated 7 Jun 2013.
Exhibit D. Letter, SAF/MRBC, dated 31 Oct 2013, w/atch.
Panel Chair
FOR OFFICIAL USE ONLY PRIVACY ACT OF 1974
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FOR OFFICIAL USE ONLY PRIVACY ACT OF 1974
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