RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00393
COUNSEL:
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her former spouses records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP)
APPLICANT CONTENDS THAT:
Their divorce decree directed her former spouse to maintain her as the beneficiary under the SBP. Neither she, nor her attorney, received notification that other requirements in addition to the divorce decree were needed in order for her to elect and receive SBP payments.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
On 4 Mar 97, the deceased former member signed DD Form 2656, Data for Payment of Retired Personnel; electing SBP coverage for his spouse and children.
On 31 May 97, the deceased former member was released from active duty and retired, effective 1 Jun 97.
On 22 Oct 13, the former member passed away.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPFFF makes no recommendation as the case potentially involves two potential (competing) beneficiaries. The applicant and the deceased former member married on 29 Jan 83 and the former member elected spouse and child coverage based on a reduced level of retired pay prior to his 1 Jun 97 retirement. The parties divorced on 2 Sep 98, and the divorce decree ordered the applicant to be deemed as the irrevocable beneficiary of the SBP. There is no evidence that either party submitted a valid former spouse election within the first year following their divorce as the law requires. On 2 Jun 02, the deceased former member remarried, but he did not request that the Defense Finance and Accounting Service (DFAS) establish SBP coverage on his new wifes behalf. The deceased former members pay records continued to reflect the applicants name as the eligible spouse beneficiary. However, the wife from the 2 Jun 02 marriage became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. The youngest child lost eligibility Jul 10 due to age. The deceased former members widow is eligible to receive his SBP annuity, but has not yet applied for the benefit. Laws controlling former spouse coverage restrict a former spouses eligibility for an SBP annuity to those individuals who remarried after age 55. Based on the applicants 20 Mar 01 re-marriage at the age of 43, her potential eligibility to receive the annuity is suspended.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 28 Jul 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or regulations.
2. The application was timely filed.
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; however, after a thorough review of the available evidence of record, it is our opinion the requested relief should be denied. The former member elected spouse and child coverage based on a reduced level of retired pay prior to his 1 Jun 97 retirement. Following the applicant and former members divorce on 2 Sep 98, there was no evidence that either party submitted a valid former spouse election within the first year following their divorce as the law requires. The former member remarried in 2 Jun 02, but did not request that the Defense Finance and Accounting Service (DFAS) establish SBP coverage on his new wifes behalf. His pay records continued to reflect the applicants name as the eligible spouse beneficiary. However, the wife from the 2 Jun 02 marriage became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law, but has not yet applied for the benefit. Laws controlling former spouse coverage restrict a former spouses eligibility for an SBP annuity to those individuals who remarried after age 55. Based on the applicants 20 Mar 01 re-marriage at the age of 43, her potential eligibility to receive the annuity has been suspended. Irrespective of this, even if the applicants marriage at the age of 43 had not precluded her from retaining eligibility for SBP benefits, we do not find the evidence presented by the applicant sufficient for us to recommend corrective action. The AFBCMR has long been advised by legal counsel that it should only consider granting cases involving more than one claimant to the same benefit when extraordinary circumstances are present such as clear and unmistakable evidence that a deemed election was made or the current spouse provides a notarized statement voluntarily relinquishing their right to the benefit. There is no evidence provided that supports that extraordinary circumstances exist in this case. 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 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-2014-00393 in Executive Session on 17 Feb 15 under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00393 was considered:
Exhibit A. DD Form 149, dated 22 Jan 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPFFF, dated 1 Apr 14.
Exhibit D. Letter, SAF/MRBR, dated 28 Jul 14.
AF | BCMR | CY2014 | BC 2014 01582
The Board should consider it in the interest of justice to consider his untimely application as it would be a great injustice if his former spouses present spouse were to die or they were to divorce and she were not entitled to the SBP again. The applicant and his former spouse were married on 21 Aug 71 and he elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Aug 91 retirement. Exhibit D. Letter, SAF/MRBR, dated 11 Jul 14.
AF | BCMR | CY2014 | BC 2014 02386
In support of her request, the applicant provides a personal statement, copies of the former members death certificate, divorce decree, Separation and Property Settlement Agreement, marital status affidavit and various other documents associated with her request. None of the documents the applicant provided (Separation and Property Agreement or QDRO) had language that would entitle her to deem former spouse SBP coverage. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her attorney submitted...
AF | BCMR | CY2014 | BC 2014 01225
PL 97-252 (8 Sep 82) permitted retiring members to provide SBP coverage for their former spouses under the insurable interest option. It is recommended that the deceased former members record be corrected to reflect that on 1 Mar 86, he elected to change SBP former spouse coverage under the insurable interest option to former spouse coverage under the spouse coverage option, naming the applicant as the eligible former spouse beneficiary, and she concurred in the change. THE BOARD...
AF | BCMR | CY2013 | BC 2013 04458
His former spouse has been receiving a portion of his military retirement and remained eligible to be the beneficiary of his SBP up until her subsequent marriage. The correct date of marriage is 7 Dec 04. Neither the applicant nor his current spouse dispute the fact that his first former spouse is the rightful beneficiary of the SBP.
AF | BCMR | CY2012 | BC-2012-04626
________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, stating, in part, there is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent's record be corrected to reflect on 1 Feb 94, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Considering the applicant failed to execute a deemed...
AF | BCMR | CY2014 | BC 2014 00704
He submitted DD Form 1882, for former spouse and child coverage; however, DFAS-CL did not honor the election because it was not received until after the one-year eligibility period. However, while the applicant contends the election for former spouse coverage was made within the required time, no evidence has been provided, to our satisfaction, that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. THE BOARD DETERMINES...
AF | BCMR | CY2013 | BC 2013 02704
She did not even know about the divorce until her husband passed away. If neither the member nor the former spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. Further, the divorce decree she provided did not include language that would entitle her to former spouse SBP coverage.
AF | BCMR | CY2013 | BC-2013-01181
The parties divorced on 23 Jan 1987, and the divorce decree ordered the conversion of the SBP annuity. 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. Exhibit D. Letter, SAF/MRBC, dated 31 Oct 2013, w/atch.
AF | BCMR | CY2012 | BC-2012-04943
The parties divorced on 5 Jun 98, and in the Child Custody Marital Dissolution Agreement, incorporated in the divorce decree, the member agreed the applicant would receive survivor benefits from his military retirement. There is no evidence of Air Force error, and absent a competing claimant, we recommend the member's record be corrected to reflect that he elected to change SBP spouse to former spouse coverage based on full retired pay and named the applicant as the eligible former spouse...
AF | BCMR | CY2013 | BC 2013 05614
There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedents record be corrected to reflect that on 1 Jul 87, he elected to change RCSBP spouse to former spouse coverage based on full retired pay, naming the applicant as the eligible beneficiary. SBP premiums were deducted from the decedents retired pay until his 28 Jun 11 death. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to...