RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-01662
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
She be allowed to make a former spouse election under the
Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
The SBP reads spouse; however, it should read former spouse in
accordance with their divorce.
The applicant's complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The former member retired from the Air Force on 1 March 2001.
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/DPFFF does not provide a recommendation as the application
involves two potential SBP beneficiaries.
The applicant was married to the former service member on
8 September 1980. Prior to his 1 March 2001 retirement, the
former member elected spouse and child SBP coverage based on
full retired pay. The parties divorced on 21 February 2008 and
in the separation agreement, which was incorporated into the
divorce decree, the former member agreed to maintain SBP for the
applicant. However, there is no evidence either party submitted
a valid former spouse election within the first year following
the divorce, as the law requires.
The Defense Enrollment Eligibility Reporting System (DEERS)
reflects the former member remarried on 30 April 2009, but he
did not notify the finance center of the change in his marital
status or request that spousal coverage be established on her
behalf. By operation of law, the current spouse became the
eligible spouse beneficiary on the first anniversary of their
marriage.
The complete DPFF evaluation is at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant has no additional evidence to submit but states
that it was the intent of all parties that she and the children
remain beneficiaries of the SBP. She has paid half of the
premiums and was unaware there was a form that she needed to
complete.
The applicant submitted an affidavit attesting to the fact that
she and her former spouse were marred on 9 September 1980. They
divorced on 21 February 2008. She did not indicate whether or
not she was remarried; however, she did attest that her former
spouse is remarried.
The applicants complete response, with attachment, is at
Exhibit D.
On 26 April 2014, SAF/MRBR sent the former member a request to
return a notarized SBP marital status affidavit and SBP release
of benefits affidavit within 30 days (Exhibit E). As of this
date, the former member has not responded.
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. 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. While we
note the divorce decree awarded the applicant continued coverage
under SBP, neither she nor the former member made a deemed
election within one year as required by law. Since it appears
the former service members second spouse gained entitlement to
the benefit by operation of law, and there has been no showing
of extraordinary circumstances, we are precluded from granting
the applicant the SBP benefit. Absent the current spouse
relinquishing her entitlement or the former member executing the
appropriate steps required to remove his current spouse as SBP
beneficiary, we find no basis to grant the applicants request.
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 AFBCMR Docket
Number BC-2014-01662 in Executive Session on 12 June 2015, under
the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 14 Apr 14, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 11 Jun 14.
Exhibit C. Letter, SAF/MRBR, dated 30 Sep 14.
Exhibit D. Letter, Applicants Response, undated, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 26 Apr 14, w/atch.
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