RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00195
COUNSEL:
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her former spouses records be corrected to show that she is the
former spouse beneficiary under the Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
In a two-page brief, through counsel, the applicant contends the
following:
Her former spouse intended for her to be the SBP beneficiary
from the date of their divorce on 18 May 99, to the date of his
death. Their divorce decree specifies that she is the
beneficiary of the SBP.
In May 99, her former spouse notified the Defense Finance
Accounting Service (DFAS) of his election to change SBP spouse
to former spouse coverage.
The Board should consider her untimely application in the
interest of justice because she did not discover the error until
after the death of her former spouse.
In support of her request, the applicant provides copies of the
deceased members DD Form 214, Certificate of Release or
Discharge from Active Duty; DH Form 1947, Certificate of Death;
AF Form 1581, SBP Election Statement for Former Spouse Coverage
and divorce decree.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 18 May 99, both parties divorced and the divorce decree
ordered the decedent to continue the applicant as the SBP
beneficiary.
According to the AF Form 1581 dated in 1999, the applicants
date of birth is 3 Dec 45.
According to the former members death certificate dated 29 May
13, he was not married at the time of his death.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. The decedent and the applicant
were married on 18 Aug 70, and he elected spouse and child SBP
coverage based on full retired pay prior to his 1 Nov 79,
retirement. The youngest child lost eligibility in Aug 94.
The applicant provided a copy of the AF Form 1581; however,
DFAS-Cleveland (DFAS-CL) has no record of receipt of the form.
The decedent did not request coverage for the applicant to be
terminated following their divorce, indicative of his intent to
maintain her as the eligible SBP beneficiary. To deny the
applicants request would deny an asset awarded to her by the
court.
SBP premiums continued to be deducted from the decedents
retired pay until 1 Jul 10, when the paid up SBP provision
became effective. DFAS-CL records continued to erroneously
reflect the applicants name as the eligible spouse beneficiary
On 22 May 13, the decedent died. There is no evidence of Air
Force error in this case and absent a competing claimant, we
recommend the member's record be corrected to reflect on 19 May
99, he elected to change SBP spouse to former spouse coverage
based on full retired pay, naming the applicant as the former
spouse beneficiary. Approval should be contingent upon recovery
of any applicable premiums.
The complete DPFFF evaluation is at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 21 Mar 14, for review and comment within 30 days
(Exhibit C). As of this date this office has not received a
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. We took
notice of the applicants complete submission in judging the
merits of the case and find 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 note that DPFFF recommends approval; however,
we have been advised by our Agency Legal Counsel that a
potential exists for competing interests. In cases involving
competing interests, this Board has been advised not to consider
such cases unless a court of competent jurisdiction has ruled in
the case or remands the case to the Board to make a
determination. Therefore, we are precluded from granting the
applicant the SBP benefit. However, we would like to point out
that if the former members heir(s) were to provide a notarized
consent relinquishing the benefit, or to complete the Survivor
Benefit Program Release of Arrears of Pay (AOP) Affidavit, we
would be willing to reconsider the applicants request.
Otherwise, the applicants only recourse is to return to a court
of competent jurisdiction to have the issue decided. Therefore,
in the absence of evidence to the contrary, we find no basis to
recommend granting the requested relief.
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material 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-2014-00195 in Executive Session on 17 Feb 15 and 8 Jun
15, under the provisions of AFI 36-2603:
Vice Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2014-00195 was considered:
Exhibit A. DD Form 149, dated 18 Dec 13, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 13 Mar 14.
Exhibit C. Letter, SAF/MRBR, dated 21 Mar 14.
Exhibit D. Letter, Counsel, dated 22 Sep 14
Exhibit E. Letter, SAF/MRBRA, dated 23 Sep 14.
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