RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2008-03673 

INDEX CODE: 137.03 

 XXXXXXXXXXXXXXXXXXXX COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

She be recognized as her former husband’s Survivor Benefit Plan 
(SBP) beneficiary. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

She was married to her former husband for 30 years and 10 months 
and knew nothing of the SBP at the time of their dissolution of 
marriage. 

 

In support of her appeal, the applicant provided a copy of her 
and her former husband’s marriage certificate, a copy of their 
divorce decree, the decedent’s DD Form 214, Certificate of 
Release or Discharge from Active Duty, and her former husband’s 
certificate of death. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The decedent retired for disability effective 19 April 1991, and 
elected spouse and child coverage based on a reduced level of 
retired pay prior to his retirement. The decedent and applicant 
divorced on 21 October 2002 and the Marital Settlement Agreement 
for Dissolution of Marriage was silent on the SBP. 

 

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

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR defers this case without recommendation based on 
guidance from the Board, because it involves two potential SBP 
beneficiaries. DPSIAR states there is no evidence the decedent 
submitted a valid election to change his spouse SBP coverage to 



former spouse coverage during the required time following their 
divorce. The Defense Enrollment Eligibility Reporting System 
(DEERS) records the decedent married XXXX on 2 November 2002, 
but he did not request that the Defense Finance and Accounting 
Service - Cleveland Center (DFAS-CL) establish SBP coverage on 
her behalf. The decedent’s retired pay records erroneously 
reflect the applicant’s name and date of birth as the eligible 
spouse beneficiary and that SBP premiums were deducted from his 
retired pay until his 17 January 2008 death. The decedent’s 
widow has applied for payment of SBP, which has been offset by 
her receipt of Dependency and Indemnity Compensation (DIC). In 
addition, the decedent’s widow received a refund of the SBP 
monthly premiums that the decedent had paid before his death 
(approximately $648). 

 

The complete DPSIAR evaluation is at Exhibit B. 

 

The BCMR Legal Advisor recommends denying the applicant’s 
request. The Legal Advisor states that in accordance with 
federal law, the decedent’s widow is the eligible beneficiary 
unless there has been a legally effective election. In this 
case, the election would have been voluntary since the court 
order did not mandate SBP coverage for his former spouse. If 
there were not a competing eligible beneficiary, the BCMR Legal 
Advisor would recommend correcting the record. He would also 
recommend correcting the record if the current spouse gave her 
notarized consent. Absent the consent, there are no 
extraordinary circumstances that would support not enforcing the 
deemed election requirement given the fact correcting the record 
in the manner requested would deprive the decedent’s current 
spouse benefits to which she is legally entitled. 

 

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

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the BCMR Legal Advisor’s evaluation was forwarded to the 
applicant on 7 January 2009 for review and response within 30 days 
(Exhibit D). As of this date, this office has received no 
response. 

 

_________________________________________________________________ 

 

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 probable error or injustice. We 
took notice of the applicant’s complete submission in judging the 
merits of this case; however, we agree with the opinion and 
recommendation of HQ USAF/JAA and adopt the rationale expressed 
as the basis for our decision that the applicant has failed to 
sustain her burden that she has suffered either an error or 
injustice. Although the Board has the authority, it has been 
advised by General Counsel it should not rule on a dispute 
between two claimants to a benefit that only one of them can 
receive. It is considered not appropriate for the Board to 
adjudicate such a dispute since that task is more properly left 
to the courts. However, if the decedent’s current spouse submits 
a notarized statement relinquishing her entitlement to the SBP, 
the Board may be willing to reconsider the applicant’s appeal in 
consideration of this evidence. In view of the foregoing, 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 this application in 
Executive Session on 19 February 2009, under the provisions of 
AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2008-03673: 

 

 Exhibit A. DD Form 149, dated 3 Oct 08, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIDR, dated 4 Dec 08. 

 Exhibit C. Letter, SAF/MRB, dated 31 Dec 08, w/atchs. 

 Exhibit D. Letter, AFBCMR, dated 7 Jan 09.