RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-03482
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
She be designated as the spouse beneficiary under the decedents
Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
For nearly four years, she has been told that she was entitled
to receive a portion of the decedents pay. Defense Finance and
Accounting Service (DFAS) stated that in order to receive the
SBP benefit they only needed to be married for 10 years, the
former spouse had to be deceased and she had to pay an
$18,496.42 debt. She can repay the outstanding debt.
She learned that no one at DFAS was aware of the letter dated
11 May 11 stating she was entitled to SBP and that the person
who sent the letter was no longer employed at DFAS. All she
wants is for someone to correct the mistake.
The Board should consider it in the interest of justice to
consider her untimely application as it has taken DFAS over
three years to admit they made a mistake.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 1 Oct 76, the decedent retired in the grade of Technical
Sergeant (TSgt, E-6).
A marriage certificate issued by the State of Texas, County of
Walker reflects the decedent and the applicant were married on
8 Feb 88. A certificate of death issued by the State of Texas,
reflects the decedent died on 3 Dec 10.
The applicant provided a letter from DFAS dated 11 May 11 which
states that the decedent had been paying into the SBP since
1 Oct 76; however, they did not have record of the decedents
first spouses death certificate or divorce decree. The
applicant was advised that upon providing these documents, her
SBP account would be established and all retroactive pay would
be issued.
The applicant provided a signed, notarized affidavit dated
20 Oct 14 stating she is not currently married.
AIR FORCE EVALUATION:
DFAS-JFBE/CL recommends denial of the request. In Accordance
With (IAW) 10 U.S.C. § 1448(5)(B), the decedent had to notify
DFAS of his marriage within one year of his first anniversary in
order to provide SBP coverage for his spouse. DFAS must assume
the decedent was fully informed of the provisions of the SBP at
time of retirement. As he made no effort to elect coverage for
his spouse within the one year following the date of marriage,
they must assume that the decedent did not desire SBP coverage
for his spouse.
On 21 May 76, prior to his retirement, the decedent elected
spouse and child SBP coverage. The decedent and his former
spouse divorced on 8 Jul 76 and he retired on 1 Oct 76. At the
time of his retirement, the decedent was unmarried.
Accordingly, no spouse SBP coverage was established. DFAS
erroneously established spouse SBP coverage and deducted SBP
premiums for spouse coverage until Mar 83. At that time, the
premiums associated with the spouse coverage which had been
erroneously deducted from Oct 76 to Mar 83 were refunded to the
decedent. Since the decedent was unmarried at the time of
retirement, he was eligible to elect spouse SBP coverage upon
subsequent marriage; however, the election must be made within
one year of the marriage date. The decedent and the applicant
were married on 13 Feb 88; however, there is no evidence he
sought to establish SBP coverage for her and no premiums were
paid after their marriage.
On 13 Apr 11, the applicant submitted a claim for SBP annuity
and on 11 May 11, DFAS erroneously advised her that the decedent
had been paying into SBP since 1 Oct 76. On 21 Feb 14, DFAS
advised the applicant that her claim for an SBP annuity was
denied but did not advise her of her right to appeal the denial
to the Defense Office of Hearings and Appeals (DOHA). On 29 Jul
14, the applicant was advised of her right to submit an appeal
to DOHA within 30 days. An appeal from the applicant was never
received. This letter also advised her that she could pursue
corrective action to the AFBCMR.
A complete copy of the DFAS 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 2 Feb 15 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 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
applicant was regrettably misinformed regarding the decedents
SBP election on file; however, we are not persuaded there was an
error or injustice to warrant granting the requested relief.
Accordingly, we agree with the opinion and recommendation of the
Air Force office of primary responsibility and adopt its
rationale as the basis for our conclusion the applicant has not
been the victim of an error of injustice. Therefore, in the
absence of evidence to the contrary, we find no basis to
recommend granting the requested relief.
4. The applicants 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-2014-03482 in Executive Session on 6 May 15 under the
provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Aug 14, w/atchs.
Exhibit B. Affidavit, Applicant, dated 20 Oct 14.
Exhibit C. Memorandum, DFAS-JFBE/CL, dated 24 Dec 14.
Exhibit D. Letter, SAF/MRBR, dated 2 Feb 15.
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