RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01626
			INDEX CODE:		 137.01, 137.04
			COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased ex-husband’s records be corrected to show that he elected former spouse Survivor Benefit Plan (SBP) coverage.

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APPLICANT CONTENDS THAT:

Her ex-husband’s records should reflect her as the former spouse and beneficiary as ordered in their divorce decree.  She was not informed by the Defense Finance and Accounting Service (DFAS) to submit a deemed election even after she submitted the Divorce Decree which ordered that she remain the beneficiary of the SBP.  She contacted DFAS several times after the divorce to ensure she was still the beneficiary and was reassured that she remained the eligible beneficiary.

In support of her request, applicant provided a personal response, a copy of an Obituary, a copy of her deceased ex-husband's Certificate of Death, and a copy of their Final Divorce Decree.

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

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STATEMENT OF FACTS:

The deceased former member and the applicant married on 12 Feb 57, and the former member elected spouse and child SBP coverage, based on full retired pay prior to his 1 Sep 80 retirement.  The parties divorced on 1 Aug 89, and the divorce decree ordered that the applicant remain the designated SBP beneficiary; however, neither submitted a valid election change during the required time limit.  Defense Enrollment Eligibility Reporting System (DEERS) records show the former member remarried on 3 Sep 93, but he did not request that DFAS establish SBP coverage on his second wife’s behalf.  The youngest child lost eligibility in Jun 94.  The former member’s retired pay records erroneously reflected the applicant’s date of birth as the eligible spouse beneficiary and SBP premiums were deducted from his retired pay until his 9 Jan 07 death.  His widow is eligible to receive an SBP annuity of $1,010.00, but she has not yet applied for the benefit.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRT has no recommendation.  DPPRT states, based on the AFBCMR’s 18 Mar 04 guidance, they are forwarding this request without a recommendation, because it involves two potential SBP beneficiaries.

The DPPTR evaluation, with attachments, is at Exhibit B.

The SAF/MRBC Legal Advisor recommends denial.  The Legal Advisor states in part, that despite the 1989 court order directing the former member to make the election, federal law makes the election unavailable when the deemed election is not effected.  The applicant claims that she was not aware of this requirement and discussed her SBP status with DFAS on several occasions before she learned of the so-called deemed election requirement.  She also mentions her poor health and financial condition and the fact that she paid the SBP premium for many years.  If there were not a competing eligible beneficiary, or that beneficiary would consent to the change via a notarized statement, he would recommend correcting the record.  But there is no extraordinary circumstances here that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the former member’s current spouse of benefits to which she is legally entitled.  He reminds the Board that if it is inclined to grant the relief, it should not reach a final decision until the view of the current spouse is solicited and considered.

The Legal Advisor’s evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that the additional documentation she provided should make it easier for the Board to understand her point of view.  She also states that from 1980 until his death her deceased ex-husband paid the SBP premiums in lieu of spousal support, and thereafter, she paid the premiums.  She provides a personal statement, copies of checks, documentation pertaining to spousal support payments, and background information related to their divorce proceedings.

The applicant’s complete response is at Exhibit D

The deceased member’s widow provided a notarized statement stating in part, that she and her deceased husband had an understanding that the ex-wife (who is the applicant), would receive the SBP benefits.  Upon finding out that the ex-wife has not received the SBP benefits, she was asked to consent to having the beneficiary changed from her name to the ex-wife.  She does so, only if other benefits or entitlements are not jeopardized by this consent.

The complete submission, with attachments is at Exhibit E.

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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.	Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  Notwithstanding the opinions rendered by the SAF/MRBC Legal Advisor and HQ USAF/JAA, after thoroughly reviewing the circumstances of this case, it is the opinion of the Board that the former spouse should receive the SBP annuity.  The Board notes the current spouse has provided a notarized statement relinquishing her entitlement to the SBP.  The Board is persuaded it was the applicant’s intent to provide his former spouse the SBP annuity and is satisfied his current spouse is fully aware she is relinquishing her entitlement to the SBP annuity.  In view of the above and the absence of persuasive evidence to the contrary, the board recommends granting the relief sought.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 2 August 1989, he elected former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming XXXXXXXXXX, as the former spouse beneficiary.

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The following members of the Board considered Docket Number BC-2007-01626 in Executive Session on 18 December 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 May 07, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 11 Jul 07.
   Exhibit C.  Letter, AFBCMR, dated 18 Oct 07, w/atchs
   Exhibit D.  Letter, Applicant, undated, w/atchs.
   Exhibit E.  Letter, Spouse, dated 23 Nov 07, w/atch.