RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:
		DOCKET NUMBER:  02-03200
		INDEX CODE:137.04
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her late husband’s Survivor Benefit Plan (SBP) election of former spouse coverage be changed to entitle her to an SBP annuity.  

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APPLICANT CONTENDS THAT:

She contacted the Defense Finance and Accounting Service (DFAS), Retiree’s Benefits Office, to see if she was eligible for her late husband’s SBP annuity.  The DFAS office stated she was the beneficiary on record; however, she was later advised that his former spouse was receiving the SBP benefits and that they would have to contact Denver to see why.

She does not understand how on September 15, 1999, seven months after her husband passed away, that he elected his former spouse as beneficiary when she has documentation showing that his desire was to have her as the beneficiary.   After he was diagnosed with cancer and told he would die, he sat down with her and told her that she would not have anything to worry about and that she would be taken care of by the Air Force.  She was with him when he accomplished the forms designating her as his beneficiary.  She is now under the impression that his desires and wishes do not mean a thing.  He was retired from the Air Force before he married his former spouse, and against his request, she is receiving his SBP benefits.

In support of her appeal, applicant submits a copy of his divorce decrees, a copy of her marriage certificate, a copy of her late husband’s death certificate and correspondence relating to SBP benefits from DFAS and the AFBCMR.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Military Personnel Database reflects applicant retired effective 1 October 1974.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. 

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends the application be denied.  DPPTR states that the former member and the former spouse were divorced on 11 September 1996 and the former spouse was awarded the SBP by the court, but neither submitted a former spouse election change within the required time limit.  The former member failed to advise DFAS of the divorce and SBP premiums continued to be deducted from his retired pay until 29 May 1998, when he notified DFAS of his divorce and marriage to the applicant.  At that time he requested his former spouse be removed from the SBP and that the applicant be designated as the eligible spouse beneficiary when she gained eligibility.  Even though the former member requested that the applicant be named the beneficiary to the SBP before his death, the applicant would not have been eligible for the annuity because the member died before they had been married one full year.  There are no provisions in law to waive the one-year eligibility period for spouses acquired after retirement.  

The AFPC/DPPTR evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states she cannot argue against the legal reasons why the former spouse is receiving the SBP annuity.  She wants to state her views.  It is true that they fell short by a couple of days of being married for a year.  It was she who took care of him, in those trying times and final days.  It was he who told her not to worry, that he filed the forms and that the Air Force would take care of her.  It was she who was there, by his bedside, watching him, desperately trying to make those final few days to their anniversary.  What bothers her most is that the woman he caught cheating on him in his own bed is being rewarded with his SBP annuity.  It was her actions that caused the divorce.  In his final moments, the former spouse harassed and aggravated him whenever possible.  It seems like a slap in his face that his wishes and desires are not being carried out.  

Applicant’s letter is at Exhibit D.  

On 24 March 2003, a copy of a USAF/JAG evaluation regarding former spouse requests for SBP coverage was forwarded to the applicant for review and comment.  As of this date, we have not received a response.

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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 error.  We have reviewed the available evidence pertaining to the applicant’s assertions related to her late husband’s Survivor Benefit Plan (SBP) election, and we are unpersuaded that an SBP election change from former spouse to entitle her to an SBP annuity based on the evidence presented is warranted.  Her contentions in this regard are duly noted; however, in our opinion, the Air Force office of primary responsibility has adequately addressed these contentions and we are in agreement with their recommendation.  It should be noted that even if the former spouse were not eligible for SBP, the applicant would not receive the SBP annuity because the member died before they had been married one full year.  In view of the above, we find no basis to warrant favorable consideration of this application.  

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.  

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The following members of the Board considered this application in Executive Session on 8 April 2003, under the provisions of AFI 36-2603:
The following documentary evidence for AFBCMR Docket Number 02-03200 was considered:

    Exhibit A.  DD Form 149, dated 30 Sep 02, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 24 Oct 02.
    Exhibit C.  Letter, SAF/MRBR, dated 1 Nov 02.

    Exhibit D.  Letter, Applicant, dated 7 Nov 02 w/atchs.
    Exhibit E.  Letter, AFBCMR, dated 24 Mar 03, w/atchs.