RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-02386

							COUNSEL:  NONE

							HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

Her former spouse’s record be corrected to show that she is the 
former spouse beneficiary under the Survivor Benefit Plan (SBP).


APPLICANT CONTENDS THAT:

Her former spouse agreed that she would receive the SBP benefits.

In support of her request, the applicant provides a personal 
statement, copies of the former member’s death certificate, 
divorce decree, Separation and Property Settlement Agreement, 
marital status affidavit and various other documents associated 
with her request.  

The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

According to the divorce decree, dated 9 Jun 95, the applicant and 
her former spouse were married on 27 Mar 71.  

According to the Separation and Property Settlement Agreement, 
dated 9 Jun 95, (incorporated in the divorce decree), the parties 
agreed the former member would “continue to have deducted from his 
gross retirement pay the monthly premium for the SBP with wife 
being the beneficiary thereof.”  

According to the Defense Enrollment Eligibility Reporting System 
(DEERS), on 19 Dec 98, the former service member married his 
second spouse.  

On 10 Aug 13, the former service member died.

On 19 Jun 14, copies of the AFBCMR marital status affidavit were 
forwarded to the applicant to verify if she had remarried.  

The applicant responded with a signed and notarized affidavit 
dated 3 Jul 14, which indicated she has not remarried.


AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial.  There is no evidence of an Air 
Force error or injustice.  However, the Board may reconsider the 
applicant’s request upon receipt of a clarified court order which 
clearly awards her the SBP.

The former service member failed to properly complete a DD Form 
2656, Data for Payment of Retire Personnel, prior to his 1 Dec 94, 
retirement.  Without confirmation of his marital status at the 
time of his retirement, DFAS-CL established spouse and child 
coverage based on full retired pay to comply with the law.  On 
9 Jun 95, the parties divorced and in the Separation and Property 
Settlement Agreement incorporated in the divorce decree, the 
parties agreed the applicant would receive “one half of the former 
service member’s military retirement,” and in the Qualified 
Domestic Relations Order (QDRO) the applicant was awarded fifty 
percent of the former service member’s disposable retirement pay, 
but neither of the documents specifically addressed SBP 
entitlements.  

There is no evidence the former service member submitted a valid 
election to voluntarily change spouse to former spouse SBP 
coverage within the first year following their divorce as the law 
requires.  Upon receipt of the QDRO from the applicant’s attorney, 
DFAS-CL suspended the spouse coverage effective 9 Jun 95.  

DEERS records reflects the former service member married his 
second spouse on 19 Dec 98, but did not request that DFAS-CL 
establish SBP coverage on her behalf; however she became the 
eligible spouse beneficiary on the first anniversary of their 
marriage by operation of law.  On 10 Aug 13, the former service 
member died.  His widow is eligible to receive an SBP annuity of 
$1,624.00 but she has not yet applied for the benefit.  

The applicant may request to deem an SBP election on behalf of the 
former service member if 1) a court order was issued ordering him 
to make such an election or 2) the former service member’s 
agreement to maintain SBP coverage for his former spouse was 
incorporated in the divorce decree.  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.

The complete DPFFF evaluation is at Exhibit B.




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Her attorney submitted DD Form 2293, Application for Former Spouse 
Payments from Retired Pay, dated 25 Aug 95 and copies of her 
Separation and Property Settlement Agreement, dated 9 Jun 95 to 
DFAS-CL that attest to the fact that her former spouse agreed to 
make her the former spouse beneficiary for SBP benefits.  

Her Separation and Property Settlement Agreement, under the 
heading “Life Insurance” states, “the parties agree the parties 
will continue to have deducted from his gross retirement pay the 
monthly premium for the survivor benefit plan with wife being the 
beneficiary thereof.  The premium payments currently are $123.89.”   
This document was signed by both her former spouse and her and 
authenticated by the Clerk of the Court.  

During most of her former spouse’s military service, she put her 
own career on hold to support him in his military career.  She was 
unable to achieve seniority in her own employment due to the 
frequent moves.  When her former spouse remarried he was no longer 
in the military and his new wife’s career has not been affected by 
military life.

She does not understand why DFAS-CL suspended spouse coverage upon 
receipt of the QDRO from her attorney, when the Separation and 
Property Settlement Agreement (incorporated into the divorce 
decree) clearly states that her former spouse agreed to provide 
her with survivor benefits.

Her former spouse did not submit a DD Form 2656 for his current 
spouse either before the one year anniversary of their marriage.  
She is sure her former spouse must have informed his current 
spouse that he signed the court order making her the benefactor of 
his survivor benefits as the current spouse has not submitted an 
application.  

In further support of her request, the applicant provides a 
personal statement, copies of DD Form 2293; DD Form 2656, 
Separation and Property Settlement Agreement and various other 
documents associated with her request.

The applicant’s complete response, with attachments, is at Exhibit 
D.


ADDITIONAL AIR FORCE EVALUATION:

After reviewing the AFPC/DPFFF advisory opinion, dated 30 Jul 14, 
the Board staff determined the facts and recommendation as stated 
were incorrect.  Specifically, a review of the Separation and 
Property Settlement Agreement (incorporated in the divorce 
decree), dated 9 Jun 95, provided by the applicant reflects 
language that would entitle her to deem former spouse SBP 
coverage.  In a memorandum dated 27 May 15, DPFFF revised their 
advisory opinion and the following was provided:

The parties divorced on 9 Jun 95, and in the Separation and 
Property Settlement Agreement, (incorporated in the divorce 
decree), the parties agreed the member would, “continue to have 
deducted from his gross retirement pay the monthly premium for the 
SBP with the wife being the beneficiary thereof.”  There is no 
evidence either party submitted a valid former spouse election 
during the required time following their divorce.  

DPFFF now forwards the request without a recommendation because it 
involves two potential SBP beneficiaries.

The complete DPFFF evaluation is at Exhibit E.


APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant 
on 27 May 15, for review and comment within 30 days (Exhibit F).  
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 note the 
conflicting advisory opinions prepared in this case; however, 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 applicant’s 
complete submission in judging the merits of the case and note the 
Separation and Property Settlement Agreement incorporated in the 
divorce decree stipulated that the former member would continue to 
have deducted from his gross retirement pay the monthly premium 
for the SBP with the applicant (his former spouse) being the 
beneficiary thereof.  However, neither the applicant nor the 
former member made a deemed election within the one-year period, 
from the date of the decree of divorce, as required by law to 
establish former spouse coverage.  By operation of law, the former 
member’s current spouse became the eligible SBP beneficiary on the 
one-year anniversary of their marriage since no action was taken 
to elect former spouse SBP coverage by the applicant or former 
member.  Although the Board has the authority to change SBP 
records, only in the most unique of circumstances would the Board 
make a ruling on a case that involves two claimants to a benefit 
that only one of them can receive.  However, if the legal 
beneficiary submits a notarized statement relinquishing her 
entitlement to the SBP, the Board may be willing to reconsider the 
applicant’s appeal in consideration of this evidence.  In view of 
the above and in the absence of evidence to the contrary, we find 
no basis to recommend granting the relief sought in this 
application.

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably considered.


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-2014-02386 in Executive Session on 23 Jul 15, under the 
provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 21 May 14, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 30 Jul 14.
	Exhibit C.  Letter, SAF/MRBR, dated 20 Oct 14.
	Exhibit D.  Letter, Applicant, dated 10 Nov 14, w/atchs.
	Exhibit E.  Letter, AFPC/DPFFF, dated 27 May 15.
	Exhibit F.  Letter, SAF/MRBR, dated 27 May 15.