RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04358
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her late husbands Survivor Benefit Plan (SBP) election date for
former spouse coverage be changed to reflect 26 Feb 02 rather than
12 Mar 02 and she be entitled to SBP.
APPLICANT CONTENDS THAT:
She completed the SBP Election statement and faxed it to the
Defense Finance and Accounting Service - Cleveland Center (DFAS-
CL) to change the coverage to former spouse, on 26 Feb 02, within
one year of the divorce. However, DFAS records reflects receipt
of the election form, on 12 Mar 02, which was more than a year
after their 27 Feb 01 divorce.
In support of her appeal, the applicant provides copies of the
decedents death certificate; the Election Statement for Former
Spouse Coverage, signed by her and the decedent, and the now
obsolete DD Form 1882, Suvivor Benefit Plan Election Change
(Former Spouse).
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
According to the documents provided by the applicant, on 26 Feb
02, the election form was faxed to DFAS-CL.
According to the death certificate, on 26 Oct 13, the decedent
passed away and was survived by his current spouse; not the
applicant.
AIR FORCE EVALUATION:
AFPC/DPFFF did not provide a recommendation since it involves two
potential SBP beneficiaries.
The applicant and the decedent were married on 23 Jun 84, and he
elected spouse and child SBP coverage based on full retired pay
prior to his 1 Sep 00 retirement. The parties divorce on 27 Feb
01, and in the Property Settlement Agreement, incorporated in the
divorce decree, the decedent agreed the applicant would be the
beneficiary to the SBP. 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. DEERS records show the applicant married (his
second spouse) on 20 Apr 01, and they divorced on 21 Dec 09;
however, there is no evidence the applicant requested DFAS-CL
establish SBP coverage on her behalf. DEERS records show the
decedent married (surviving spouse) on 16 Aug 10, but he did not
notify DFAS-CL of the change in his marital status nor request
that spouse coverage be established on her behalf. DFAS-CL
records erroneously reflect the applicants name and date of birth
(25 Apr 63) as the eligible spouse beneficiary; however, the
(surviving spouse) became the eligible spouse beneficiary on the
first anniversary of their marriage by operation of law. The
youngest child lost eligibility Jul 12 due to age. SBP spouse
premiums were deducted from the member's retired pay until his
26 Oct 13 death. The decedent's widow is eligible to receive an
SBP annuity of $1000, but she has not yet applied for the benefit.
The complete DPFFF evaluation is attached at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reiterates her original contentions that the DD Form
1882 was submitted prior to the expiration of the one year
following divorce. Contact with DFAS after the decedents passing
revealed the Mar 01 receipt date was actually the log-in date.
The decedent did not request spousal coverage following his
subsequent marriages, which signifies his wishes to honor her
entitlement to the SBP annuity.
In support of her appeal, the applicant provides a copy of the
divorce decree.
The applicants complete response, with attachments, is at
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 an error or injustice. We took
notice of the applicants complete submission in judging the
merits of the case, including her response to the Air Force
evaluation. The applicant asserts that the divorce decree issued
to her and the deceased former member awarded her benefits under
SBP. 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. Aside, as noted by
the Air Force office of primary responsibility, we have been
advised by our Legal Advisor, federal law makes the election
unavailable when the deemed election is not timely effected.
Further complicating this case is the fact that after divorce, the
decedent remarried, by operation of law, the decedents widow
became the legal beneficiary and entitled to the SBP benefits.
Consequently, this is now a case involving two or more claimants
to a benefit that only one can receive. Since there has been no
ruling by a court of competent jurisdiction regarding this issue,
we do not find that any basis exists for us to decide this case at
this time. Should the applicant be able to provide additional
documentation to substantiate her claim, we may be willing to
reconsider her appeal. In view of the above and in the absence of
evidence to the contrary, we must deny the relief sought in this
application.
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-2014-00704 in Executive Session on 28 Jan 15 under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining AFBCMR Docket Number
BC-2014-00704 was considered:
Exhibit A. DD Form 149, dated 10 Feb 14, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 30 Apr 14.
Exhibit C. Letter, SAF/MRBR, dated 15 May 14.
Exhibit D. Letter, Applicant, dated 4 Jun 14, w/atchs.
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