ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03852
		INDEX CODE:  110.00
	 (DECEASED)	COUNSEL:  
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, she requests her former late husband’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

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STATEMENT OF FACTS:

The applicant and the servicemember were married on 6 Jul 68.  Prior to the servicemember’s 1 Aug 84 retirement, he elected child only coverage under the SBP based on full retired pay.  During the open enrollment period from 1992 - 1993, he added spouse coverage to his existing child only coverage.  The servicemember and applicant were divorced on XX May XX and the court order awarded the SBP benefits to the applicant.  There was no evidence in the servicemember’s records to indicate that either the servicemember or the applicant submitted an election to change the SBP coverage from spouse to former spouse.  He remarried on XX Aug XX.  The servicemember’s records did not reflect that he notified the Defense Finance and Accounting Service (DFAS) of the change in his marital status.  The servicemember died on XX Apr XX.  His current widow has been receiving an SBP annuity since Aug 03.

The applicant's request to have her former late-husband’s records corrected to reflect he made a timely election for former spouse coverage was considered and denied by the Board on 20 Jul 04.  For an accounting of the facts and circumstances surrounding the applicant's request and the rationale of the earlier decision by the Board, see the Record of Proceedings, with Exhibits, at Exhibit H.

On 19 Jul 05, the applicant filed a complaint in the U.S. District Court for the District of Colorado, alleging, inter alia, that the Board’s decision was arbitrary, capricious, and without basis in fact and law.  The applicant agreed to stipulate to a dismissal of the Federal court case without prejudice, if the AFBCMR would agree to again review the case in light of two recent court cases, King v. United States and Holt v. United States.

Applicant's complete submission, with attachments, is at Exhibit I.

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AIR FORCE EVALUATION:

HQ USAF/JAA in response to the Board’s request for an advisory opinion regarding several court decisions by the US Court of Federal Claims, recommends the Board refrain from reconsidering this matter until the Board obtains an advisory opinion from DFAS and that the decedent’s current widow be afforded an opportunity to provide comments to the Board.

The complete JAA evaluation is at Exhibit J.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant, in response to the HQ USAF/JAA, memorandum stresses three points.  First counsel states the Air Force is bound by the administrative record in the previous denial.  There is implication in the JAA opinion that there is some question as to whether DFAS received the divorce decree prior to the decedent's death.  The Air Force has at all times during consideration of this case had full access to the administrative record and the opportunity to get the facts straight--an opportunity not available to the applicant, who can only guess what the DAS and Air Force records contain, unless they are disclosed to her as they should have been.  Had applicant's case gone to trial the government would have been bound by the agency record as it existed in the previous BCMR denial.  Secondly, counsel states DFAS' action to change the beneficiary created a manifest injustice, accomplishing what the decedent could not have done himself.  The injustice stems from DFAS' application of statutes to effect a change in the beneficiary actually designated by the member unprompted by a single manifestation if intent by the decedent.  On the contrary, DFAS' action was contradicted by his last clear statement of intent and a divorce decree.  Had he fulfilled his obligations under the divorce decree he would have been prohibited from cutting the applicant off from SBP without a court order.  It is more than passing ironic that DFAS takes the position that an untimely submitted divorce decree which imposes a legal requirement to continue SBP coverage for the applicant is insufficient for DFAS purposes to be enforced for her benefit, but can be used to change the record to her detriment.  Thirdly, counsel states the BCMR's mandate to correct injustices is the power to do equity.  The draconian application of the one-year rule means that "other than the rare circumstance in which the service member informs his former spouse that he intends to violate the divorce decree, the latter will always find out too late to satisfy the deemed election provision, unless she were to ignore the service member election provision as meaningless surplusage."  In this regard, the reasoning of the court in Holt v. United States is apropos.  According to its latest rendition of the facts, DFAS was hardly an "unwitting participant in an inequity; it was rather the deus ex machina without which the applicant would be receiving her court-ordered entitlement to SBP.  Counsel concludes that JAA proceeds on the apparent and erroneous assumption that the law forecloses BCMR relief.  In the previous application, the recommendation from DP was to exercise the Board's equitable powers to correct a clear injustice.  The JAA opinion recommending against relief, like DFAS presently, adopted not merely a procrustean approach to the deemed election, but implied that the Board was not legally empowered to correct the injustice, especially where there is another beneficiary.  That objection has been dissolved by the King and Holt cases.  

Counsel's complete response is at Exhibit L.

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ADDITIONAL AIR FORCE EVALUATION:

DFAS-CL/DGM states the applicant relies on the Holt and King cases to support her request for award of an SBP annuity.  DFAS believes both cases are distinguishable.  Contrary to the Holt case, there is no record in the present case that DFAS received a request from the former spouse to enforce the terms of the divorce decree under the Former Spouses Protection Act (FSPA), accompanied by a copy of the divorce decree and separation agreement.  Unlike the Holt case there is no DFAS record that reflects receipt of correspondence from the former spouse regarding her FSPA claim or any acknowledgment that the relevant court order contained a provision regarding SBP coverage.  The King case is also of little impact to applicant’s case, because the AFBCMR has not previously granted the applicant’s request for a records correction and is not seeking to apply a subsequent  state court order that purports to reconcile the competing interests of the former spouse and surviving spouse.

The complete DFAS evaluation is at Exhibit M.

Exhibits N through P are various administrative correspondence between the Board staff, the applicant, and the decedent’s widow.

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INTERESTED PARTY RESPONSE:

On 11 Apr 07, the Air Force Review Boards Agency Legal Advisor notified the decedents widow of this application which may affect her interests and invited her to provide comment.  The current widow responded stating that she spoke with the applicant’s son and offered to give him the annuity she is receiving to give to the applicant for a short period of time.  In addition, she shared the life insurance proceeds with the decedent's children.  She expressed concern about losing the benefits she is receiving which she believes is lawfully hers.  Her complete submission is at Exhibit Q.

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THE BOARD CONCLUDES THAT:

After careful reconsideration of the applicant’s request and the documentation submitted in support of her appeal, we find no evidence of an error warranting corrective action in this case and are not persuaded by counsel's assertions that the applicant has been the victim of an injustice.  In this respect, we find no cogent evidence that the appropriate documentation required to reflect former spouse SBP coverage was received by DFAS, within the specified time period, as required by statute.  We note counsel's argument that DFAS should have accepted the divorce decree that was purportedly forwarded by the applicant to effect former spouse election, since DFAS initiated payments of a portion of his retired pay upon its receipt.  However, according to DFAS records, that action was not initiated by the receipt of the divorce decree, but because of receipt of the appropriate documentation provided by the decedent.  Furthermore, we note that SBP annuity has been granted to the decedent's widow.  We find reconsideration of DPPTR's original recommendation that we correct the record as suggested inappropriate, simply because taking action "to preclude the possibility" of an injustice to the applicant would, in our viewpoint, create an injustice to another.  Accordingly, it is our opinion that the applicant has failed to sustain her burden of proof of the existence of an error or injustice in this case.  Regarding the specific request that this case be reconsidered in light of the Holt V. United States and King v. United States court cases, we agree with DFAS-CL/DGM that it appears these cases are distinguishable from this particular AFBCMR application and we find no basis upon which our determination should be bound by those particular cases.  In view of the above, we find no basis upon which to recommend granting the requested relief.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2003-03852 in Executive Session on 30 January 2008, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2003-03852 was considered:

	Exhibit H.	Record of Proceedings, dated 14 Oct 04, w/atchs.
	Exhibit I.	U.S. District Court Stipulation for Dismissal,
		dated 19 Jul 05.
	Exhibit J.	Letter, HQ USAF/JAA, dated 17 Feb 06.
	Exhibit K.	Letter, SAF/MRBC, dated 28 Feb 06.
	Exhibit L.	Letter, Applicant’s Counsel, dated 24 Mar 06.
	Exhibit M.	Letter, DFAS-CL/DGM, dated 31 Jul 06, w/atchs.
	Exhibit N.	Letter, SAF/MRBC, dated 3 Aug 06, w/atch.
	Exhibit O.	Letter, SAF/MRBC, dated 11 Apr 07, w/atchs.
	Exhibit P.	Letter, AFBCMR Legal Advisor, dated 11 Apr 07,
		w/atchs.
	Exhibit Q.	Letter, Current Widow, dated,1 May 07, w/atchs.
	Exhibit R.	Letter, SAF/MRBC, dated 6 Jun 07.