RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03737 INDEX CODE: 137.04 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: Her deceased former husband’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity. ________________________________________________________________ _ APPLICANT CONTENDS THAT: She had no knowledge there was SBP coverage until Oct 07. Her divorce settlement plainly states that neither party shall make any claim to the retirement benefits of the other. However, she found out in Nov 07, that her husband had in fact made a provision for her to have an annuity when he retired. The annuity was taken out at the time of his retirement in 1989, and well before their divorce in 1992, without her ever knowing it. Had she known this at the time of her divorce, she would not have requested a statement be made about a future claim on his retirement. She did not even know she was the beneficiary of his military life insurance until his death. In support of her request, the applicant provided a copy of their marriage certificate, their divorce decree, her former husband’s death certificate, an AF Form 114, Arrears of Retired Pay Designation and/or Annuity Beneficiary Changes, a settlement agreement incorporated in their divorce decree, and a letter to the Retiree Services Office at AFPC. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The Air Force indicates the member and the applicant were married on 8 May 71. He elected spouse only SBP coverage based on full retired pay prior to his 1 May 89 retirement. The parties divorced on 17 Aug 92, and the settlement agreement, incorporated in the divorce decree, stated both the applicant and the decedent agreed to relinquish their rights to the other’s retirement benefit. In Apr 93, the member notified the Defense Finance and Accounting Service (DFAS) of the change in his martial status and DFAS removed the applicant as the eligible spouse beneficiary and refunded overpaid premiums retroactive to the date of divorce. There is no evidence either party has remarried and the member died on 4 May 03. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSIAR reviewed this application and recommends denial. Public Law (PL) 99-145, 8 Nov 85, but effective 1 Mar 86, required the spouse of a married member, who retired on or after the effective date of the law, to concur in writing in any election that provided less than maximum SBP coverage for the spouse. Concurrence is not required if the member elects SBP coverage on full retired pay on the spouse’s behalf. A person’s eligibility to receive a spouse SBP annuity terminates upon divorce. However, the law provides two mechanisms for changing spouse to former spouse coverage. Both must be exercised within the first year following divorce: the retiree may file an election change, or the former spouse may request the retiree be deemed to have made such a change on his or her behalf. In the latter case, the former spouse must provide legal documentation that the member agreed, or the court ordered the member, to establish former spouse coverage. If neither the member nor the former spouse requests the election change within the one-year eligibility period, former spouse coverage may not be established thereafter. Although SBP premiums may continue to be deducted from the member’s retired pay following divorce, the former spouse is not eligible to receive annuity payments in the event of the member’s death. Even though the SBP was not addressed in the divorce decree, the member could have elected former spouse coverage voluntarily within the first year following the divorce, but failed to do so. Instead, he took specific action to suspend his SBP premiums eight months after the divorce, indicative of his intent not to maintain SBP coverage on the applicant’s behalf. Furthermore, the petitioner fails to provide a reason for her four year delay in requesting corrective action. The DPSIAR evaluation is at Exhibit B. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 18 Jan 08, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received. ________________________________________________________________ _ 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 or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, 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 that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered Docket Number BC-2007-03737 in Executive Session on 26 Jun 08, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2007-03737 was considered: Exhibit A. DD Form 149, dated 9 Nov 07, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, 21 Dec 07. Exhibit C. Letter, SAF/MRBR, dated 18 Jan 08.