RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02361
		INDEX CODE:  137.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased former husband's records be corrected to show that he elected former spouse coverage under the Survivor's Benefit Plan (SBP) program.

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APPLICANT CONTENDS THAT:

On his retirement date of 1 Oct 91, her former husband was required to make an SBP election.  If he elected to decline SBP, her concurrence would have been required.  She is providing copies of the SBP forms that her husband completed prior to his retirement.  Although the Retired pay system reflects SBP declined, the SBP Notification and Concurrence form (AF Form 1266) shows no SBP election was made and her signature is not on the form.  With no SBP election annotated, full SBP coverage should have been established for her unless there was another AF Form 1266 completed.  

She and her husband were divorced on 15 May 01 and a military pension order was decreed on 20 Nov 01.  Part of the pension order directs her former husband to make SBP provisions for her.  She knows that the court cannot make a member elect SBP if it was formally declined at retirement, so it was her impression that SBP was already in place and only an election change had to be made.  She was not told SBP had not been established for her until her former husband's death in May 07.  She is unaware of any documentation of formal declination of SBP coverage and she does not recall concurring with such an election.  

She is aware that if her request is approved a debt would be established due to owed premium deductions and the debt would have to be paid in full before she would begin receiving a monthly annuity.

In support of the application, the applicant submits copies of the SBP Notification and Concurrence, the SBP Election form, the Data for Payment of Retired Air Force Personnel form, and her former spouse's death certificate.

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

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STATEMENT OF FACTS:

The applicant and military service member were married on 19 May 75.  There is no evidence the member returned a 92-93 or 99-00 open enrollment election form for the applicant while she was his wife.  The parties divorced on 16 May 01, and although unenforceable, a military pension order incorporated in the divorce decree states that it would be appropriate for the applicant to be named the sole beneficiary to the SBP.  Defense Enrollment Eligibility Reporting System (DEERS) records show that the former military member remarried on 6 Dec 04 and died on 19 May 07.  
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AIR FORCE EVALUATION:

Unless a valid election form was received.  DFAS-Cleveland Center (DFAS-CL) did not properly ensure copies of critical SBP documents, such as members' election forms and spouses' concurrence statements, were safeguarded and retrievable following Oct 93 when DFAS-CL assumed Air Force retired pay HQ AFPC/DPSIAR recommends denial.  DPSIAR states there is no evidence that the incomplete SBP election form provided by the applicant is the same election form the AFAFC received and processed.  DPSIAR opines the finance center would not have updated the member's record to show he declined SBP coverage responsibilities.  Nevertheless, there is a strong basis to presume AFAFC administratively discharged their duties correctly, and in compliance with the laws controlling proper establishment of SBP elections.  Furthermore, there is no evidence the member attempted to seek correction to the declination of his SBP and pay associated costs for the ten years following his retirement and before his divorce.  

The SBP election form provided by the applicant was incomplete and not initialed by the member.  No valid spouse SBP coverage was established; therefore, former spouse coverage may is not authorized in this case.

The complete DPSIAR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 26 Oct 07 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit D).
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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant submitted a copy of an AF Form 1266 signed by the member in 1991.  This form neither declines nor elects SBP.  Assuming possible facts most favorable to the applicant, at its best possible, the situation could be a presumed election of “spouse” coverage, not “former spouse.”  At the time of his death, the member had a spouse (not the applicant) who could have been eligible to recover any “spouse” benefits.  The spouse’s rights would be superior to the applicant’s rights as former spouse.  As the “former spouse,” the applicant would not qualify for “spouse” benefits.  To have created “former spouse” coverage, either the member or the applicant would have had to notify DFAS within one year of the divorce.  They did not do that.  The applicant’s best possible opportunity to obtain SBP “former spouse” coverage expired in May 2002.  Other military members and their former spouses are held strictly to the one year statute for deemed elections; waiving the statute for this applicant would be unfair for all the other members and former spouses similarly situated.  Therefore, even if the member had “spouse” coverage, it would not apply to the applicant now.  In the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 14 Feb 08, under the provisions of AFI 36-2603:

The following documentary evidence for AFBCMR Docket Number BC-2007-02361 was considered:

	Exhibit A.  DD Form 149, dated 23 Jul 07, w/atchs.
	Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 18 Oct 07.
	Exhibit C.  Letter, SAF/MRBR dated 26 Oct 07.